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I need some assistance with these assignment. contributions to the payment of the mortgage Thank you in advance for the help!
I need some assistance with these assignment. contributions to the payment of the mortgage Thank you in advance for the help! The courts have wide discretion3 to redistribute the assets of married couples without having to take into account beneficial ownership. 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 the 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 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 not-direct. Other commonwealth jurisdictions have different approaches but the same issues of uncertainty and obscurity.
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.
