Property Law (Equity & Trusts) Max word limit 2250 Case Study

Property Law (Equity & Trusts) Max word limit 2250 - Case Study Example There is no such statutory provision for cohabitants; they are subject to the equitable rules of resulting and/or constructive trusts and/or promissory estoppel and may have no redress despite having made substantial contributions to the maintenance of the property and/or indirect contributions to the payment of the mortgage. This is aggravated by the lack of certainty in the law with regard to measuring acquisition and quantification of beneficial interests. The 'justice' received turns on the initial pleading of the claimant and the manner in which the household budget was allocated4. Typically a claimant who seeks an estoppel will have a broader range of remedies available from the court than someone who seeks to establish a constructive trust based on indirect contributions. This has led to inconsistency in judgments, which undermines the certainty of the law, with a subsequent increase in litigation and costs5. The Law Commission speculated on introducing a 'statutory trust' where registered beneficiaries would earn a pro rata proprietary interest rather than a personal right to be repaid the value of their relevant contribution(s), subject to evidence of gifts or loans6. Unfortunately it was felt that the scheme would not reduce the evidential burden and that it did not offer enough remedies. In particular the scheme did not fully address the lost economic opportunities following the breakdown of a relationship where the contributions were non-direct7. Other commonwealth jurisdictions have different approaches but the same issues of uncertainty and obscurity.8 It is submitted that the focus on the 'family' home is too narrow given the statistics on cohabitation and the many diverse forms which have evolved. A broader approach to shared rights in accommodation is called for. As demonstrated in the Law Commission's review of other jurisdictions waiting for the courts to develop greater flexibility will necessarily be slow, strapped as they are by an Executive still focusing on the 'family' - hence displaying a lack of understanding of the social issues - on one hand and judicial precedent on the other. Advisors also will be limited by decided cases and the increasing difficulty of obtaining legal aid to bring novel situations before the court. Further, the law is based on outmoded ideas of shared accommodation and the idea of common intention. The emphasis on status - with marriage being the ideal - seems to be holding back the development of the law in this area. It is submitted that the 'evil' to be overcome is not one's marital status, or whether or not children are brought up in a marriage, but inadequate financial provision for persons who have a legitimate expectation to be provided for. This should be the norm regardless of 'status'. One absurdity of the 'status' approach is the impact on the descendants of married versus non-married couples, where 'legitimate' children can expect to be provided for whilst 'illegitimate' children are reliant on a judge's largesse. The Civil Partnership Act 2004 ss65-68 are a step in the right direction, but only covers couples of the same gender who have undergone a prescribed ceremony. Whilst non-financial contributions are recognised, this is limited by the requirement of a contribution of a 'substantial