Coursework on Family Law Problem Question

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The situation between Lauren and her cohabitant is very complicated. A lot of laws can be applied to this situations and a lot of different decisions to be taken. The main task of the lawyer is to use the adequate law, and to present proper evidences considering this law in order to protect Lauren and her children, as well as enable them to live in their house.

A resulting trust may be applicable to the closely related parties. Lauren and her co-habitant can be considered as closely related parties because they have been living together for 10 years, and they have 3 children, although they are not married.

While implementing a resulting trust, the court presumes its intention to create this kind of trust. According to it, the law considers that the house is not held by a right person and the possessor is only holding a property in trust of rightful owner (Resulting Trust Definition: A trust that is presumed by the court from certain situations).

These cannot be fully applicable to the Lauren’s case because Paul even before he started to live with Lauren was the owner of the house. Furthermore, after beginning living together, he paid mortgages for this house. Lauren only assisted in household expenses and utility bills.
A resulting trust has a possibility to arise where a common intention respecting an interest in property can either be implied by operation of law, or is established on the basis of evidence (Resulting Trust Definition: A trust that is presumed by the court from certain situations) .
Generally, there are different circumstances that can give rise to the resulting trust. Among the circumstances that are applicable to this particular case is any variant of a situation where A and B purchase property but the property is held in the name of B. B becomes a resulting trustee with respect to A’s interest in the property (Resulting Trust Definition: A trust that is presumed by the court from certain situations).
Similarly, where two persons pay for property but only one goes on title, the law, through equitable principles, can find that the person on title holds the other’s share in trust in proportion to their respective contributions, as a resulting trust (Resulting Trust Definition: A trust that is presumed by the court from certain situations).

Lauren have not got big chances in respect of home that she shared with Paul according to resulting trust, because the most of the costs for housekeeping were paid by her co-habitant. Furthermore, Paul was an initial owner of the house before he started to live with Laura. However she can try to prove in the court that she makes some contribution to their home expenses. Though, as for me, she will be not very successful.

If Laura’s case will be referred as the constructive trust case, the situation will be different. This trust is mostly operated by principles of equity. The Court usually recognises the existence of the constructive in a declaratory way.
Existence of this particular trust does not depends on any order of the Court. The institution of this trust arises upon the happening of the events which bring it into being. It is some way of enforce accountability and represents some means to avoid money or other property being retained by the “wrong” party (Constructive trusts).

This kind of trust represents an equitable remedy of trust for benefiting a party that has been deprived of its rights wrongfully due to a person who obtains a legal right to property which should not been possessed by them due to interference or unjust enrichment (Constructive trust, law library – American law and legal information, The principles of the law of restitution)
According to the constructive trust, the defendant can convey particular right (in this case, the right to live in the house) to the claimant on the basis of particular evidences (The fiction of the constructive trust).

This kind of trust usually arises by performing of law and is not dependent on the intention of parties (“Air Jamaica Ltd v Charlton).
The institutional constructive trust may arise where the facts of the dispute fall within an existing category of cases where a constructive trust has previously been recognised (Constructive law principles).

A constructive trust may arise when a defendant has received property (in the particular case – the house), in which the claimant has an equitable right (Distinctions in the law) . The court can vindicate that the right on property by requiring the defendant to hold property on a constructive trust for claimant (Equity in commercial law).

Constructive trust is usually imposed in order to prevent unconscionable conduct (Express trust), especially in the cases of the family property disputes (Lord Denning MR in Hussey v Palmer).

In the Laura’s case, the constructive trust can be treated either as institutional mechanism (if there were any previous resembling cases) or remedial mechanism (Constructive trust).
As a remedial mechanism, such trust can be imposed de novo as the foundation for the grant of an equitable remedy, and does not involve the vindication of some pre-existing proprietary right of the claimant (Muschinski v Dodds). According to this point of view, a constructive trust will be recognised through the exercise of judicial discretion.

In the Laura’s case these can be implemented because she paid some expenses on the house and especially because she lived with Paul for 10- years, has children from him. However, she is not a legal owner of a property and never has been a legal owner; she did not pay mortgage payments. Thus, she has little rights in respect of home according to compensation trust.

Proprietary estoppel claims may arise in connection with claim transfers of ownership. This kind of claim can be brought when one party represents that she is transferring an interest in house to another but this has no legal effect. These kinds of claims represents something like legal bars that prevent a party A to deny the party’s B rights on the party’s A property (in this particular case it is house) where the party B has incurred expenses in that property to its loss and detriment (Proprietary estoppel).

The Court should determine whether an equity in favour of second party arises out of the conduct and relationship of the parties (in this particular case the parties were co-habitants); the extent of the equity and the compensation appropriate to satisfy the equity (The beneficial principle of proprietary estoppel).

There are three paramount criteria which have to be satisfied for success of a property estoppel claim: an assurance made to the client; a reasonable reliance on that assurance by the claimant which leads to a detriment suffered by the claimant in consequence of that reliance, meanwhile, the notion of unconscionability runs throughout these criteria (Yeoman’s row management). Due to unconscionability, proprietary estoppel “has wide application, but its boundaries are uncertain and its effects are not entirely clear” (Sharing homes).
The property estoppel clam should contain encouragement. An encouragement is the belief of the plaintiff have to be encourages by a defendant explicitly or implicitly (Laura and Paul were co-habitants for a long period of time and lived together).

The other necessary element of this kind of claim is reliance. It is introduced in the claimant’s description that she has relied on the defendant’s encouragement to his detriment. “The claimant must have spent money or acted in a way which he would not have done if the landowner had not built up an expectation in his mind” (A New Land Law).

Also, the plaintiff should have to suffer a detriment, for example, money payments. “Nobody has any doubts that for a proprietary stopping to give rise the individual who makes claim should have been incurred expenses or have partisan himself or herself or acted to his or her where the second party has incurred disadvantage of costs” (Greasley and Others v Cooke).

This detriment can be represented by small acts (in this particular case it is Laura’s household expenses and utility bills). The plaintiff should be assured that she would have a home for life. The relevant factor in investigating these claims by the Court is detection the weight of detriment.

Laura has the highest possibility in respect of the home in the proprietary estoppel claim because she has relations with the owner of the house Paul, has children with him and, as the main factor, she assisted with household expenses and utility bills. Obviously the Court will satisfy Laura’s claim and she would have a possibility to live in the house with her children.

According to the Home Office study on domestic violence, domestic violence is the major cause of morbidity that is bigger than war, cancer and motor vehicle accidents for women from 19 to 44 years old. Almost 89 per cent of victims who were suffering, sustained this type of violence were female (Domestic violence and family law: a new era). Therefore, Laura’s case is not the anecdotal evidence. Special Laws and regulations are created to protect female from domestic violence.

Such violence is treated as criminal offence. The Courts should intervene to halt such offences. The Court has an ability to order several forms of injunctions: ouster order requires one party (in this particular case this will be Paul) to vacate the home and not to return to it; or non-molestation order restrain the defendant from interfering with the plaintiff.

Under the Family Law Act of 1996 (FLA 1996), Laura has an ability to obtain protection in respect of the domestic violence issue, i.e. her physical assault by Paul.

According to the Section 62 of the Family Law Act, Laura and Paul can be treated as former co-habitants as they are woman and man who, in spite of not married, were living together as husband and wife.

The main statements about domestic violence are contained in the Part IV of the Family Law Act 1996 that also concerns to occupation of the matrimonial home. This Act makes provisions to a comprehensive single scheme in order to protect against violence and any kinds of disputes that concern occupation of the matrimonial home.

Non-molestation and occupation orders can be made in a separate application. They can be made by a county court or by the High Court; or by a magistrates’ court (subject to appeal to the High Court). However the magistrates are enforced to decline jurisdiction in case if they consider it appropriate and cannot hear any application involving any disputed question as to a party’s right for occupying premises unless the determination of that question is irrelevant to the order.

The FLA considers as family violence physical abuse (Laura’s case). To prevent future violence the Court has an ability to make a family protection order. This order can limit communications and contact between parties (Laura and Paul). Protection order provides restriction one party form contacting the other party; controlling of stalking-type behaviour, stopping a specific person to visit family place of living and prevent someone from owing a weapon (Guide to the new BC). All this can be applied against Paul.

According to FLA, Laura and her children have a right to obtain spousal support from Paul, because Laura and Paul, although not being married, have been living together for more than 2 years, and have children together. A decision about spousal support, time period of this support and its amount is taking by the Court on the basis of different objectives such as time and conditions of joint live, age and amount of children, financial situation of the family.

Different sections of the Part IV states different requirements for different family cases. Not all of them are applicable to Laura’s case. Below will be described statements that concern only this particular case.
In the Section 36 , the rules for cohabitants and former cohabitants with no any existing rights to occupy are stated; Section 38 states for co-habitants whereby they have not got any rights to occupy (Domestic violence).
According to the Section 36, a former cohabitant has an ability to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation. This section provides similar protection for ex-cohabitants.

While determining the relationships and requirements, the Court should take into account such conditions as the time that they have been cohabitants, nature of their relationship, mutual children, how long ago they started to live separately, responsibility for children and their ability to look after them.
According to the Section 38 the Court will permit or not Permit Laura to occupy the house or part of it with her children and determine the way of occupation. The Court will consider the same statements as in Section 36.

The Section 41 pays Court’s attention to the fact that the parties have not provided each other the marriage commitment, i.e. the members has no feeling that marriage was not being given a high enough profile.

Considering all above, the court have an ability to protect Laura and her children from domestic violence from the Paul’s side by imposing some prohibition and limits on him. Most probably this will be implemented because Paul has threatened Laura by physical assault, and children have confirmed this fact. Also, Laura has an ability to receive Court’s allowance to come back to her home with her children. This decision will be based on the facts that she has been living with Paul for ten years, they have children, and during this time, she has been assisting with household expenses and utility bills, although she is not a legal owner and she has not been paying mortgage. Also, the Court would take into account the fact that Laura has not got any other place of living. Most probably, the children will stay with Laura but not with Paul because he is drinking.

However, to get positive decision in respect of the home, Laura has to apply to the court using proprietary estoppel, the Family Law Act, and Part IV of this Act.

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