News & Articles
Kew Cricket Event 26th May 2008
The annual Kew Charity Cricket tournament will take place again this year on bank holiday Monday, 26th May on Kew Green. The event regularly attracts over 2,500 people and raises valuable funds for local charities. It is a huge community event with a band, bar and activities for all the family and is always well supported by local businesses and celebrities.
Van Baaren & Wright are sponsoring the event. If you are interested in any of our services and wish to meet us on an informal basis we shall be present at the event at our stall. We shall be pleased to be of assistance to you and look forward to an enjoyable day.
Cohabiting couples - Greater certainty and simplicity upon the breakdown of a relationship?
Jane Wright - 1 Feb 2008
Recent Case Law and the implications for cohabiting couples
On 25th April 2007, the House of Lords heard a case called Stack –v- Dowden, a case about the property rights of an unmarried cohabiting couple in a house in which they lived together until the breakdown of their relationship. This case establishes new guidelines within which future cases about cohabitants’ rights are to be decided. It is thought by legal practioners that this case will give couples greater certainty and simplicity in view of the uncertainty which faces unmarried couples upon the breakdown of their relationship.
Am I a Common Law Partner?
It is a common misconception that there is such a thing as “common law marriage” which gives unmarried parties the same rights as a married couple. This is not so, regardless of the length of the relationship, and many unmarried couples only discover this when the relationship comes to an end. Historically the law placed particular emphasis on direct financial contributions to the acquisition of the property and in the absence of any agreement between the parties, a share in the property was likely to be acquired only on proof of financial contributions by way of payment of a capital sum (such as a deposit) or of mortgage installments. This left areas of uncertainty such as indirect contributions, caring for children or looking after the house.
Living together is on the Increase
We hear in the news constantly that “living together” rather than marriage is on the increase. A Law Lord in Stack –v- Dowden indicated that it has become ever more pressing for there to be a simplification of the law for unmarried couples at the breakdown of their relationship. He felt it should not come down to a pure mathematical exercise because who pays for what in relation to the home has to be seen in the wider context of each couple’s overall relationship. He concluded that a more practical, down to earth, fact-based approach is called for and that the framework which the law provides should be simple and accessible.
What does this mean for Future Cases?
In those cases where only one of the parties owns legal title to the property, sole beneficial ownership is the starting point (i.e. the legal owner is entitled to 100% of the proceeds of sale). The onus falls on other party to show that s/he has any beneficial interest in the property and, if so, what the extent of that interest is.
In those cases where there is joint legal ownership of a property by an unmarried couple, joint beneficial ownership is the starting point (i.e. they are each entitled to 50% of the proceeds of sale). If one of the parties wishes to show that the beneficial interests are to be divided other than equally, the onus falls on that party to establish it.
In theory therefore everyone will know where they stand with regard to ownership of a property when they enter into their relationship, although the Law Lords acknowledge that parties are free to enter into whatever agreement they wish and, so long as their wishes are clearly expressed and can be proved, the Court will give effect to them.
There can be a departure from these presumptions only in certain circumstances (and it was made clear that this was not to be lightly embarked upon). It is suggested that, in considering whether to depart from these presumptions, the following points should be borne in mind:
The questions in a joint names case are not simply “what is the extent of the parties’ beneficial interest?” but “Did the parties intend their beneficial interest to be different from their legal interest” and “if they did, in what way and to what extent?”.
Each case will turn on its own facts and many factors other than financial contributions may be relevant to gauging the parties’ true intentions.
The sort of questions which a Court must consider when deciding whether the parties intended the beneficial interest in a property to be held other than 50/50 are:-
(1) Any advice or discussions at the time of the acquisition of the property which casts light upon the parties’ intentions at that time;
(2) The reasons why the home was acquired in their joint names;
(3)The purpose for which the home was acquired;
(4) The nature of the parties’ relationship;
(5)Whether they had children for whom they both had responsibility to provide a home;
(6)How the purchase was financed, both initially and subsequently;
(7) How the parties arranged their finances, whether separately or together or a bit of both;
(8)How they discharged the outgoings on the property and their other household expenses.
(9)When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The calculation of how much was paid by each is also likely to be less important where the home is owned in joint names. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally.
So where now?
The court when making its decision made references to the need for new legislation to resolve the issues which arise in this type of case. It will be interesting to see whether or not this case does in fact give clarification and simplification and whether the hoped for legislation will follow.
The annual Kew Charity Cricket tournament will take place again this year on bank holiday Monday, 26th May on Kew Green. The event regularly attracts over 2,500 people and raises valuable funds for local charities. It is a huge community event with a band, bar and activities for all the family and is always well supported by local businesses and celebrities.
Van Baaren & Wright are sponsoring the event. If you are interested in any of our services and wish to meet us on an informal basis we shall be present at the event at our stall. We shall be pleased to be of assistance to you and look forward to an enjoyable day.
Cohabiting couples - Greater certainty and simplicity upon the breakdown of a relationship?
Jane Wright - 1 Feb 2008
Recent Case Law and the implications for cohabiting couples
On 25th April 2007, the House of Lords heard a case called Stack –v- Dowden, a case about the property rights of an unmarried cohabiting couple in a house in which they lived together until the breakdown of their relationship. This case establishes new guidelines within which future cases about cohabitants’ rights are to be decided. It is thought by legal practioners that this case will give couples greater certainty and simplicity in view of the uncertainty which faces unmarried couples upon the breakdown of their relationship.
Am I a Common Law Partner?
It is a common misconception that there is such a thing as “common law marriage” which gives unmarried parties the same rights as a married couple. This is not so, regardless of the length of the relationship, and many unmarried couples only discover this when the relationship comes to an end. Historically the law placed particular emphasis on direct financial contributions to the acquisition of the property and in the absence of any agreement between the parties, a share in the property was likely to be acquired only on proof of financial contributions by way of payment of a capital sum (such as a deposit) or of mortgage installments. This left areas of uncertainty such as indirect contributions, caring for children or looking after the house.
Living together is on the Increase
We hear in the news constantly that “living together” rather than marriage is on the increase. A Law Lord in Stack –v- Dowden indicated that it has become ever more pressing for there to be a simplification of the law for unmarried couples at the breakdown of their relationship. He felt it should not come down to a pure mathematical exercise because who pays for what in relation to the home has to be seen in the wider context of each couple’s overall relationship. He concluded that a more practical, down to earth, fact-based approach is called for and that the framework which the law provides should be simple and accessible.
What does this mean for Future Cases?
In those cases where only one of the parties owns legal title to the property, sole beneficial ownership is the starting point (i.e. the legal owner is entitled to 100% of the proceeds of sale). The onus falls on other party to show that s/he has any beneficial interest in the property and, if so, what the extent of that interest is.
In those cases where there is joint legal ownership of a property by an unmarried couple, joint beneficial ownership is the starting point (i.e. they are each entitled to 50% of the proceeds of sale). If one of the parties wishes to show that the beneficial interests are to be divided other than equally, the onus falls on that party to establish it.
In theory therefore everyone will know where they stand with regard to ownership of a property when they enter into their relationship, although the Law Lords acknowledge that parties are free to enter into whatever agreement they wish and, so long as their wishes are clearly expressed and can be proved, the Court will give effect to them.
There can be a departure from these presumptions only in certain circumstances (and it was made clear that this was not to be lightly embarked upon). It is suggested that, in considering whether to depart from these presumptions, the following points should be borne in mind:
The questions in a joint names case are not simply “what is the extent of the parties’ beneficial interest?” but “Did the parties intend their beneficial interest to be different from their legal interest” and “if they did, in what way and to what extent?”.
Each case will turn on its own facts and many factors other than financial contributions may be relevant to gauging the parties’ true intentions.
The sort of questions which a Court must consider when deciding whether the parties intended the beneficial interest in a property to be held other than 50/50 are:-
(1) Any advice or discussions at the time of the acquisition of the property which casts light upon the parties’ intentions at that time;
(2) The reasons why the home was acquired in their joint names;
(3)The purpose for which the home was acquired;
(4) The nature of the parties’ relationship;
(5)Whether they had children for whom they both had responsibility to provide a home;
(6)How the purchase was financed, both initially and subsequently;
(7) How the parties arranged their finances, whether separately or together or a bit of both;
(8)How they discharged the outgoings on the property and their other household expenses.
(9)When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The calculation of how much was paid by each is also likely to be less important where the home is owned in joint names. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally.
So where now?
The court when making its decision made references to the need for new legislation to resolve the issues which arise in this type of case. It will be interesting to see whether or not this case does in fact give clarification and simplification and whether the hoped for legislation will follow.
