A Matter of Trust: The Allocation of Rights in the Family Home

Lind, Craig and Barlow, Anne (1999) A Matter of Trust: The Allocation of Rights in the Family Home. Legal Studies, 19 (4). pp. 468-488. ISSN 0261-3875

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The current law of resulting and constructive trusts and proprietary estoppel is acknowledged to provide uncertain and often unsatisfactory remedies to disputes concerning the allocation of property rights in the family home. This article reviews these inadequacies, particularly as they affect the growing numbers of cohabitants, and puts forward radical proposals for reform. It is argued that the special nature of the family home - where the parties'relationship is based on `trust and collaboration¿ rather than commercial principles - requires reform which takes account of the broader contributions of both parties to the home and to the family in allocating property rights. The law should strive to treat all family homes in a consistent way, provide greater certainty of outcome, and yet do justice between the parties. A system of modified community property is therefore proposed. Broadly, this will provide a sliding scale of allocation of property rights over time for non-owner partners and a presumption of enhancement of the interest of the primary carer of children of the relationship. However, contracting out should be permitted; and a discretion to adjust the presumptive rights retained by the court where `manifest injustice¿ is demonstrated.

Item Type: Article
Schools and Departments: School of Law, Politics and Sociology > Law
Depositing User: Craig Lind
Date Deposited: 06 Feb 2012 19:47
Last Modified: 28 Mar 2012 10:48
URI: http://sro.sussex.ac.uk/id/eprint/22192
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