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You are here: BAILII >> Databases >> The Law Commission >> SHARING HOMES [2002] EWLC 278 (01 November 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/278.html Cite as: [2002] EWLC 278 |
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A Discussion Paper
Presented to the Parliament of the United Kingdom by the Lord High Chancellor
by Command of Her Majesty
November 2002
Cm 5666
The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.
The Law Commissioners are:
The Honourable Mr Justice Toulson, Chairman[1]
Professor Hugh Beale QC
Mr Stuart Bridge
Professor Martin Partington CBE
Judge Alan Wilkie, QC
The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.
This Discussion Paper was first published online on 18 July 2002.
The text of this Discussion Paper is available on the Internet at:
http://www.lawcom.gov.uk
| Paragraph | |
| Executive Summary | Summary |
| PART I: INTRODUCTION | PART I |
| The shared home | 1.6 |
| A property-based approach | 1.23 |
| PART II: THE CURRENT LAW | PART II |
| Introduction | 2.1 |
| Trusts of land | 2.4 |
| Legal and beneficial ownership of the shared home | 2.10 |
| Legal title – joint tenancy | 2.12 |
| Beneficial ownership- joint tenancy or tenancy in common | 2.16 |
| Resolution of disputes between trustees and beneficiaries | 2.23 |
| Dealings with third parties | 2.27 |
| Occupation of the shared home | 2.32 |
| Where a person has an interest under a trust of land | 2.34 |
| Matrimonial home rights | 2.37 |
| Orders regulating occupation of the shared home | 2.38 |
| Encouraging formal arrangements | 2.41 |
| Express trusts | 2.48 |
| Construing the declaration | 2.49 |
| Implied trusts and proprietary estoppel | 2.53 |
| Implied trusts | 2.54 |
| The resulting trust | 2.56 |
| Intention to make a gift or loan | 2.58 |
| Presumption of advancement | 2.59 |
| The current role of the resulting trust | 2.61 |
| The constructive trust | 2.62 |
| Quantification of beneficial entitlement | 2.80 |
| Proprietary estoppel | 2.88 |
| Criticisms of the current law | 2.105 |
| "Common intention" constructive trust | 2.106 |
| The relevance of contributions | 2.107 |
| Discrimination against home-makers | 2.108 |
| The quantification of beneficial entitlement | 2.109 |
| The unpredictability of estoppel | 2.110 |
| The litigation consequences | 2.111 |
| PART III: A PROPERTY APPROACH | PART III |
| An outline of the scheme | 3.3 |
| Principal features of the scheme | 3.7 |
| No express arrangement | 3.7 |
| The shared home | 3.8 |
| Excluded sharers | 3.14 |
| Trust-based | 3.17 |
| Proprietary interest | 3.18 |
| Pro rata | 3.19 |
| The date at which the beneficial interest arises | 3.20 |
| Contribution-based | 3.21 |
| Disregarding the parties' intentions | 3.23 |
| The valuation of contributions | 3.26 |
| Relevant contributions | 3.27 |
| Financial: direct and indirect | 3.28 |
| Valuation of financial contributions | 3.32 |
| Chattels | 3.37 |
| Non-financial contributions | 3.38 |
| Valuation of home-making and caring services | 3.42 |
| A discretion in respect of non-financial contributions only | 3.47 |
| Countervailing benefits | 3.49 |
| Possible controls | 3.51 |
| Disproportionality | 3.51 |
| Imposition of a minimum period of sharing | 3.52 |
| Worked examples | 3.55 |
| Example 1 | 3.56 |
| Example 2 | 3.60 |
| Unwelcome results | 3.65 |
| The problems with the scheme | 3.75 |
| The rejection of intention | 3.76 |
| The definitional problem | 3.79 |
| Undue advantage for those who share | 3.82 |
| The problem of proof | 3.85 |
| The inflexibility of the statutory trust | 3.88 |
| Prospective or retrospective | 3.94 |
| The lack of a unifying principle | 3.96 |
| Conclusion | 3.100 |
| PART IV: A WAY FORWARD | PART IV |
| Australia: "unconscionability" | 4.5 |
| Canada: unjust enrichment | 4.10 |
| New Zealand: "reasonable expectation" | 4.16 |
| Summary | 4.20 |
| PART V: A RELATIONSHIP APPROACH | PART V |
| Married couples | 5.6 |
| Financial provision and property adjustment on divorce | 5.8 |
| Statutory co-ownership | 5.12 |
| Unmarried couples | 5.13 |
| No adjustive discretion | 5.16 |
| Australia | 5.19 |
| New Zealand | 5.22 |
| Proposals for reform | 5.23 |
| The Law Society | 5.23 |
| Scotland | 5.25 |
| Northern Ireland | 5.28 |
| The policy questions | 5.29 |
| Registered partnerships | 5.30 |
| Denmark | 5.31 |
| France | 5.32 |
| Proposals for reform | 5.35 |
| Bills before Parliament | 5.36 |
| The policy questions | 5.41 |
| Summary | 5.42 |
| A tiered approach to rights and obligations | 5.42 |
| PART VI: CONCLUSIONS | PART VI |
1At the date this report was signed, the Chairman of the Law Commission was the Right Honourable Lord Justice Carnwath CVO.[Back]
