Pros and ons of Family Theory - Essay Example

?Part A The first assumption is that James and Cara were never married. According to the fact pattern, they were described as having set up a home together, and Cara decided that she no longer wanted to live with James. Therefore, these two phrases, coupled with the fact that there is no mention of a marriage between the two, would mean that the two parties were not married. Therefore, the analysis will proceed on this first assumption. The first analysis will deal with the pig farm. Initially, the pig farm was financed by the original flat that the two lived in in London. The flat was such that both of the parties contributed half of the deposit for the purchase of the flat, with the title to the property and the mortgage being in James’ name, who also made all the repayments. This arrangement went on for seven years – James making the mortgage repayments, while Cara did domestic chores. Cara did not make any mortgage payments on this flat, nor did she have a child at home to care for. Because the proceeds from the flat were used to buy the pig farm, it is therefore pertinent to analyze whose property was the flat in the first instance. Therefore, the real question here is whether Cara’s domestic contribution towards the household factors into who would be entitled to lay claim to the original flat? This question can be answered by examining Burns v. Burns [1984] Ch 317. In Burns, the plaintiff, Valerie Burns, lived with the defendant for 19 years, without the benefit of marriage. Valerie did not contribute financially towards the purchase price of the home or the mortgage installments, and acted as a homemaker. She also paid some household bills and paid for expenses related to redecorating. However, the Burns court stated that, absence any proof that Valerie made financial contributions to the purchase price or the mortgage installments, she did not have the right to beneficial entitlement to the home. In this case, Cara did contribute to purchase price, then made no other financial contributions for the next seven years. Therefore, the property would be Cara’s to the extent that she financially contributed to it, and no more, and the rest would be considered to be James’. It is unclear how much Cara put towards the property when the property was purchased, and for how much the flat was sold, but any money that was realized from the sale of this property would belong mostly to James, which means that James put most of the money towards the financing of the pig farm, even though the pig farm was titled only in Cara’s name. That said, other cases indicate that Cara would be entitled to a share of the original flat, beyond what she contributed financially, so the analysis will also take this into account. The leading case which would answer this question would be Oxley v. Hiscock [2004] EWCA Civ 546. In this case, two unmarried parties purchased a house, and the property was transferred into the name of the male partner, who was the defendant. In this case, as in the case at bar, both parties directly contributed to the purchase price of the house. Because the non-owner of this home did directly contribute directly towards the purchase price, the non-owner was entitled to a beneficial share of the home. Therefore, the principle established by Lloyds Bank plc v. Rosset [1990] UKHL 14 would not be used. The principle in Rosset, which echoes the principle in Burns, is that conduct alone would not entitle an individual to a beneficial interest in property. Nothing less than direct monetary contribution would suffice. That said, Abbott v. Abbott [2007] UKPC 53 states that a party’s course of conduct would be examined in relation to the property, in order to determine who had what share of the home. However, Holbech states that the Abbott court would only look at indirect contributions towards the purchase price, such as payments into a joint account out of which the mortgage was paid, or works to improve the property. Drake v. Whipp [1986] Ch 638 is another case which addresses these concerns. In this case, the female partner made just under 20% of the financial contributions towards a property bought with her male partner, and the property was intended to be the home of the partners. Even though she only made under 20% of the financial contribution towards the property, she was still was awarded 33% of the property by the court, because of contribution of labour, housekeeping and payment of household expenses. Holbech states that, in light of the cases which have addressed the issue regarding beneficial interest in property solely held in one person’s name, including the cases mentioned above, along with Stack v. Dowden [2007] 2 WLR 831 (in Stack, the court used a variety of factors to determine the extent of ownership of a piece of property, including the intentions of the parties, the amount of financial contributions towards the purchase price and mortgage payments, how the parties arranged their finances and how they discharged household expenses), the following factors will be used by a court in deciding beneficial interests in property. First, the non-owner must show that he is entitled to a beneficial interest in the property. Holbech states that a non-legal owner can show that he is entitled to the property either by showing an express agreement or by conduct, and contribution towards the purchase price will count as conduct. Then, once the claimant can show a beneficial interest, the court must determine the extent of that interest. Holbech states that the court will probably make an award on a proportionate basis, as this manifests the intention of the parties, although the award will not necessarily be the same as the respective contributions. Therefore, the analysis with the pig farm must begin with how much each contributed towards purchasing it. This, in turn, would depend upon how much interest each partner had in the original flat which was sold to buy the pig farm. As indicated above, the cases in the UK are somewhat conflicting as to how much Cara’s contribution to the original flat would be, as the law is evolving on the matter. Burns would indicate that Cara’s contribution would be limited to how much, financially, she contributed to buying the home, while Drake, decided two years after Burns, would indicate that her non financial contributions would count. A court would therefore have to determine which party contributed how much percentage on the flat, and this would indicate how much each party contributed to the pig farm, assuming that the pig farm was exclusively financed by the sale of the original flat. That said, the pig farm has grown considerably in value from the time that the two purchased it - it was purchased at ?400,000 and is now worth ?3.5 million. While the court might decide that the two parties are entitled to the share of the pig farm, equal to the share that they originally contributed from the sale of the original London flat, Cara’s argument should be that the increase in value should be attributed mainly to her, assuming that James did not contribute much labour towards the pig farm (and this is a safe assumption, considering that James was an alcoholic and drug addict who became a layabout by April 2007). Therefore, Cara’s argument would be that James would be entitled to what he put into the pig farm, which would, in turn, be equivalent to what James’ share was of the original London flat, and that Cara would be entitled to the rest of the pig farm value, showing that she contributed much more to the pig farm than did he. As for the country home, the same principles listed above can be used to analyse this situation, and the same cases can also be used for this. The country home was purchased for ?500,000. The contributions are that they both bought the home, and that James financed 5% of the home with an inheritance, and paid the mortgage, apparently from the time of the purchase in January 2005 until May 2007, with Cara paying the mortgage from May 2007 until August 2011. Cara also used separate property (money from a trust fund) to pay for general upkeep of the property and ?80,000 to make the repairs to the country home. James states that he owns half of the country home, and this might be a presumption because the property was titled jointly. That said, Stack v. Dowden, supra, shows that this presumption is rebuttable, and, just as in Stack, James should only be entitled to a proportionate share of the country home. The Stack factors are the intentions of the parties, as evidenced by discussions made at the time of the purchase; the reason why the home was acquired in the joint names; the nature of the parties’ relationship; whether they had children; how the purchase was financed (initial purchase and subsequent mortgage payments); how household expenses were discharge; and how the parties arranged their finances. Just on the bare facts, Cara would be entitled to much more of the country home than would James, using the Stack factors. The intentions of the parties for titling the house in both names is unclear, but it can be inferred that the intention was that both would live in the home as domestic partners. The two did have one child, and the inference is that Cara would have custody of the child after the breakup, mainly because James is currently unfit to be a parent, seeing as he is an alcoholic, drug addicted, recluse. As for the purchase, the only facts which are known is that James financed 5% of the deposit on the property and paid the mortgage for just over two years (from January 2005 to May 2007). Cara paid the mortgage since May 2007, which means that she has paid the mortgage for over four years, so her mortgage contribution is twice of James. Cara also seems to be the only one who has put money into upkeep on the home, contributing both substantial finances towards the upkeep and her own labour. Assuming that Stack is used to parcel out contributions towards the home, Cara can say that not only has she paid twice as many mortgage payments, plus ?80,000 of her money towards upkeep, plus the value of her labour, plus she is going to raise their son, Cara should be awarded a substantially higher proportion of the country home than would James. Part B In Jones v. Kernott, Jones, the woman, bought a caravan and Kernott, the man, moved into it. Jones and Kernott bought, together, 39 Badger Hall Avenue in Essex in May 1985. Jones contributed ?6,000 to the purchase price and the two parties paid for the home with an interest-only mortgage and the house was conveyed in the joint names of the two. The two parties shared payment of the household bills from that point - May 1985 – until 1993, when Kernott left the home and stopped paying the bills and stopped contributing towards to maintenance of the two children of the marriage. From May 1985 until 1993. Keronott contributed ?100 a week towards household expenses, and nothing towards the mortgage, although he did some laboring work for an extension on the home and paid friends and relations to help with this – this extension increased the value of the property by ?14,000, according to the judges on the Kernott case. Kernott then tried to claim, in 2006, that he owned one half share of the Badger Hall Avenue. The court, however, stated that that Ms. Jones contributed over 80% of the equity in the home, and Kernott contributed little towards the maintenance of the children, therefore the split of the home would be 90/10 in favour of Jones. The court in Kernott stated that, even though the home was initially bought with the intention that the home would be owned jointly, the intentions of the parties had changed over the years, as evidence by Kernott’s behavior. Also, once the parties separated, the inference that the home would be owned jointly was also severed, as this, in and of itself, evidenced a change in the intentions of the parties, with regards to the property ownership. With regards to the statement made by Dillon in Springette v. Defoe [1992] 2 FLR 388 at 393, the judge is basically stating that it is not necessarily the court’s job to make decisions according to what a lay person would regard as fair. In other words, courts have the duty to discharge the law according to legal and equitable principles, and, even though some judgments may seem unfair to the lay person, the court cannot make decisions upon the basis of fairness according to the lay person. That said, the decision in Kernott would seem to comport with what a lay person would regard as fair. As stated, the facts are that Kernott did not contribute to the upkeep of the children for thirteen years, and did not contribute towards the household expenses, including the mortgage, for those same thirteen years. The value of the home on Badger Hall Avenue increased considerably in value from the time that Kernott left the home to 2006 – from ?30,000 in 1985, when they purchased the home, to ?245,000 in 2006, which is when he sought payment for one half share of the home. Moreover, Jones contributed ?6,000 towards the purchase of home, initially, while Kernott apparently did not contribute anything at all. Kernott apparently was entitled to some ?24,000, which would be equivalent to the 10% of the house that the Kernott court stated he was entitled to. However, a lay person might see the case and see some kind of injustice. This is because Kernott, for eight years, between the years 1985 and 1993, apparently contributed half of the mortgage, and half of the living expenses of the family, plus an extra ?100 per week which was his sole contribution to the household expenses. The facts of the case indicate that Kernott gave ?100 per week towards the household expenses during this time and that Jones paid the mortgage and other household expenses out of the couple’s “joint resources.” Moreover, Kernott contributed to the expansion of the house, which increased the value of the home some ?14,000. The facts seem to indicate that Kernott not only contributed half of the expenses towards this extension, but also contributed labour himself, as well as paying others to help contribute labour towards this project. Therefore, Kernott did contribute during the period of time that he was in the home, for eight years, and his contribution was no insignificant. What a lay person might see in this case is that the court, in deciding this case, should figure out Kernott’s contribution towards to home while he was there, and counterbalance this with the fact that Kernott had not contributed to the maintenance of the children at all for the fourteen and half years between him leaving and 2006, when he asked for his share of the home. Kernott’s contribution would be ?7,000, which would be the value of half the increase in value of the home, due to the expansion, and the extra ?100 that he contributed to the household for the eight years, which would put the estimation of his extra contributions towards the home at ?48,600. Then, take into account that the mortgage was paid out of the couple’s joint resources, while Kernott was in the home, and his contribution would be increased by that much. Then, this would be offset by the fact that he did not pay child support for the fourteen and a half years before the hearing, and, suddenly, it seems that Kernott’s entire share would be wiped out, because child support for two children over fourteen and a half years would no doubt be more than the ?48,600 plus the additional money Kernott paid towards the mortgage for the eight years. In which case, really, Kernott should not have been entitled to any share of the home. Therefoer, after a careful analysis of the facts of the case, a lay person might reasonably conclude that not only should Kernott be entitled to even 10% of the value of the home, but would actually owe Jones a substantial portion more, because he failed to pay child support for two children over the period of over fourteen years. Because of this, the judgment does not seem fair to Jones, in the eyes of a layperson. Because of this, it seems that, after all, the judgment in the Kernott case would not be seen by most laypeople as being fair, so, therefore, it does, after all, support the quote by the judge above that states that courts cannot make judgments according to what a layperson would regard as fair. Bibliography Burns v. Burns [1984] Ch 317 Oxley v. Hiscock [2004] EWCA Civ 546 Lloyds Bank plc v. Rosset [1990] UKHL 14 Abbott v. Abbott [2007] UKPC 53 Drake v. Whipp [1986] Ch 638 Stack v. Dowden [2007] 2 WLR 831 Jones v. Kernott [2011] UKSC 53 Springette v. Defoe [1992] 2 FLR 388 Read More