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LAND LAW

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Introduction

In 1995, Edgar inherited a property 'The Shambles' from his brother. Three years later, he sold it for �120, 000 and used his proceeds towards the purchase of 'Hanging Gardens', a large residential house with a florists shop attached. He took out a mortgage secured over 'Hanging Gardens' for �300, 000. The property was registered at the Land Registry in his sole name. Edgar moved in with his long term girlfriend, Angelica. Angelica paid the legal costs, stamp duty, Land tax and Land registration fees, together with the removal firm's costs. She also purchased new carpets and curtains for the property. When they moved in, the couple spent many evenings discussing plans for their home and the florist shop. Initially, Edgar and Angelica shared all the household expenses. After a few months, Angelica resigned from her full-time job to work in the florists shop. She did not recieve any pay for the first 10 months to enable the business to become established. During this time she was supported by Edgars income and he paid the household expenses. In 2002, Angelica gave birth to the couples child, kelly. Edgar employed a sales assistant in the shop to enable Angelica to be a full time mother. Angelica did the housework, decorating and shopping and cared for Kelly. In 2004, Angelica used the proceeds of sale of her car to pay for a new central heating boiler and additional radiators at 'Hanging Gardens'. ...read more.

Middle

The wife had not contributed financially to the purchase of the home, but had been involved in its renovation and she claimed a beneficial interest under a constructive trust. The trial judge found as a fact that there had been no express agreement, but granted the wife a beneficial interest under the second ground in Gissing v Gissing, the common intention of the parties as inferred from their conduct. The House of Lords rejected this finding, stating that the work done by the wife was insufficient to satisfy the test of detriment in a case of express agreement, and could also not give rise to an inferred common intention trust. Lord Bridge narrowed the scope of the inferred common intention trust by stating: '... direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do.16 In the present case, Angelica can be said to have made some direct contributions to the purchase price as she paid the legal costs, stamp duty, Land tax and Land registration fees. In addition, although her purchase of the curtains and carpets, half the household expenses etc would not, on the basis of the decisions above, strengthen her case, the ...read more.

Conclusion

as illustrated by Midland Bank plc v Cooke, where the purchase price was provided mostly by the husband and partly by a wedding present. Had Edgar and Angelica married in 1998 then the courts' powers to make orders for financial provision include wider powers to redistribute the parties' assets, including their property so as to achieve broad fairness and equality between them and any relevant children. In reaching an equitable decision the courts consider a number of factors, including "the standard of living enjoyed by the parties before the breakdown of the marriage" in determining what may be considered the parties' reasonable needs. The implicit objective is to achieve a fair outcome in financial arrangements, giving first consideration where relevant to the welfare of children. Fairness requires the court to take into account all the circumstances of the case and not to discriminate between husband and wife and their respective roles. In making an order for division of the assets a judge checks his views against the yardstick of equality of division. As a general guide, equality should be departed from if there is good reason for doing so. The courts also have to consider whether Angelica's contribution as a home-maker was a comparable contribution to the husband's financial contribution. In addition previous cohabitation is also important enough be taken into account as a non-financial factor or circumstance when applying section 25 of the Matrimonial Causes Act. ...read more.

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