James and Cara Family Law - Essay Example

?Introduction In the fact pattern, James and Cara lived together and bought a home together. However, they split up nine years prior, and James has not been paying anything towards child support nor towards the maintenance of the home. The case law that will be further explained below would hint that James would not be entitled to much equity in the home, at all, because this was the result of a leading case, Jones v. Kernott,1 would assume that, because James has not been paying child support, that it would be fair and just to reduce any amount of equity that he has in the house, just looking at bare financials. This paper will examine the Jones case, and other cases, to determine how the court will look at the facts of this case and try to ascertain how the court will rule in this case. Analysis First of all, the issue that is at hand is that James and Cara have not been living together for the past eight years. However, Cara has been performing all of the housework and maintaining of children since the two have been split up. Therefore, one can argue that Cara’s caring for the children might be considered to be domestic work that would influence her share of how much she would receive, equity-wise, in the house. However, different courts have treated the value of housework and child care differently in this regard. For instance, take the case of Burns v. Burns.2 In this case, the plaintiff did not contribute monetarily to the property and the maintenance of the property. However, she contributed value to the household by her role as a homemaker. The Burns court found, however, that this was not enough, and that the plaintiff did not have the right to a beneficial entitlement to the home because she did not contribute monetarily towards this. This case was backed up by the case of Oxley v. Hiscock.3 In Oxley, there were two unmarried people who owned a home and were cohabiting, just as in the case of Burns, and in the case at bar. While both parties had contributed towards the purchase of the home in Oxley, but the court did not consider the value of the plaintiff being a homemaker in that case, either, so the plaintiff did not get an increased value in her beneficial stake in the home because she was a homemaker. Abbott v. Abbott4 came to the same conclusion, stating that only monetary contributions could suffice for determining an equitable stake in property, although some conduct may be considered, if the conduct is directly related to the house itself. For instance, conduct which improved the value of the house, such as manually making repairs, would be considered, but conduct which is indirect, such as homemaking or housekeeping, would not be considered. However, another case, Drake v. Whipp5 came to a different conclusion. In this case, the female partner made under 20% of the financial contributions towards the shared home, but was awarded 33% of the property, in part because of her contributions as a homemaker. Other cases that were before the Burns case are also relevant. For instance, in Pettit v. Pettit,6 which involved a married couple, the husband did not contribute financially towards the couple's home, which was in the separate name of the wife before marriage. He labored on the home, but the court still found that he was not entitled to a beneficial interest in the home. In Gissing v. Gissing,7 the couple was unmarried, and the husband did not contribute financially to the home. He did, however, buy furniture and do chores, such as mow the lawn. Again, the court did not find a beneficial interest for the husband in this case. Lloyds Bank v. Rosset8 is yet another case that found that conduct alone would not give rise to a beneficial interest – in that case, the wife undertook actions that improved the home, yet she did not contribute financially to the home. The wife was denied a beneficial interest, and the Lloyds court found that anything less than direct contributions to the purchase price of a home, or towards the mortgage, would suffice to show the intention of the parties that the home's interest would be split between the parties. Therefore, in the case at bar, it is doubtful that Lynette's contribution as a homemaker and a child caretaker would be taken into account to increase her share in the equity of the home. The argument is that, since she is the only one taking care of the couple's two children, that she should have more of the equity in the home because her contribution to the couple's well-being is valuable and this should be rewarded. However, most cases in the UK do not agree with this analysis, with the exception of Drake.9 Therefore, on this basis alone, the share of Lynette's equity would not be increased. Therefore, we must look to other case law to decide how the courts will look at this case.10 How courts look at the facts of the case will be dispositive on how they will rule. Another case, then, that should be examined would be that of Stack v. Dowden.11 Stack also concerned cohabiting partners, and the Stack court created a series of factors that courts should look at to decide who gets what property, and how much of a share each person is entitled to. In this case, however, not much is known about the Stack factors, but, still, the Stack factors are relevant, so they must be examined in light of the facts of this case. The first factor that the Stack court looks at is the intention of the parties. Is the property jointly titled, which would imply that the parties intended that the property be equal between them? Or is the property titled in one person's name, which means that the parties either intended for one person to retain the property and the benefits of the property, or, at least intended that one person would have more of a beneficial interest in the property than the other? Here, the property is titled jointly, so the bare presumption is that each party intended that the property be 50/50 between the parties. However, according to another case, which will be explained further later, this may not be the truth. This case is the case of Jones v. Kernott.12 In this case, as in the case at bar, the property was titled jointly, but one of the parties had left the home many years prior to actually coming to court to ask for a beneficial interest. The Jones court decided that, through the actions of the parties over the years, that his presumption was significantly altered. As noted, because the Jones case would be dispositive in this case for how the court will treat Lynette and James' case, the Jones case will be explained more fully and analyzed more fully below. The next factor looked at the by Stack case is how much each party has contributed towards the purchase price and the mortgage payments. It is unknown in this case how much each party has contributed towards the purchase price. It merely states that the parties bought the property for the amount of ?60,000. However, it is known that James has not contributed towards the mortgage for at least the prior nine years. Therefore, if the court in this case looks at this factor, then it may be concluded that James is entitled to substantially less than 50% of the property. This analysis may change, however, if more is known about how much James put on the property, initially, relative to how much Lynette did. If James, say, contributed 100% of the initial down payment for the house, then, perhaps he might be entitled to more than what might be implied by the bare facts. However, assuming that each party originally contributed the same amount towards the purchase price of the house, then James contributions have been nil for the past nine years, which would affect how much of a percentage he would ultimately be entitled to in the house at this point. Stack also looks to how each of the parties arrange their finances and how they discharged household expenses. What this implies is that monetary factors which are not directly related to the home would be considered by the court in deciding how much each party is entitled to in a piece of property. For instance, if one party pays all the household expenses, while another party pays the mortgage, then this will be considered. In this case, the evidence is that Lynette has paid all the household expenses for the home for the past nine years. This would include paying the utilities, homeowners insurance, etc. Therefore, her contributions towards these expenses probably will also play a part in the analysis, which would imply that Lynette's percentage might be increased by the amount of money that she has paid towards these expenses in the past nine years. Finally, the case of Jones v. Kernott13 will probably be how the court will decide upon the equitable distribution of the home. This is because the facts of Jones v. Kernott are substantially similar to the case of Lynette and James. In the Jones case, the parties lived in a home and this home was titled jointly. The parties shared the bills while they lived in the home, and Kernott ended up leaving the home. However, while Kernott was away, he contributed ?100 a week towards household expenses, but did not contribute anything towards the mortgage. He also did some labor work for the home, and paid friends and relations to help him with this, and the labor increased the value of the home by some ?14,000. While Kernott had left the home in 1993, he tried to claim in 2006, some 13 years later, that half of the home was his. The analysis that the court had taken in this case was that Jones, the woman, had contributed 80% of the home's finances. Yet she was awarded 90% of the equity in the home. The reason for this is that Kernott in this case did not contribute financially towards the couple's two children. The implication, then, is that if a man does not contribute financially for child support, that his share in the home would be offset by the amount that he would have owed over the years for child support, had he been paying child support. Because Kernott did not contribute towards the maintenance of the children, then this was an apparent offset. This offset would have wiped out the fact that Kernott had increased the value of the property by some ?14,000 with his labor and by hiring others to help with the extension of the home. Therefore, it was fair and just to award Jones 90% of the equity, because Kernott did not pay bills for a long period of time and did not pay maintenance for the children. While the facts for the case at bar are a bit different than Kernott, there is not a reason to believe that the court in this case would decide the case substantially differently than the Kernott case. In the Kernott case, the defendant Kernott had contributed some ?100 a week towards the living expenses, but did not contribute to the mortgage while he was in the home. However, this was not the entire story – the couple had a joint account that both of them contributed to, and it was out of this joint account that Jones paid the mortgage. This would imply that this ?100 a week should be counted towards his beneficial share of the home, assuming that a court would look towards the factors in Stack in making their decision, as Stack specifically notes that discharging household expenses is relevant in deciding property rights. However, the Kernott case still stated that, just looking at the financial contributions of the parties, the woman owned 80% of the equity. She was awarded an extra 10% because Kernott did not pay child support. The Kernott court apparently did not really take into account the extra ?14,000 that the man's labor and efforts increased the value by in the home, unless that was considered to be part of the 20% that court decided was Kernott's equity. In this case, then, with Lynette and James, the court will look at the Kernott case in deciding how the property should be divided between the parties. It is inescapable that the court was harsh with Kernott because Kernott did not contribute towards the maintenance of the couple's two children. There is no other reason why the court would have awarded Jones virtually all of the equity in the house, which amounted to some ?220,000, as the property was valued at around ?245,000 at the time that Kernott went to court for half of the property. Therefore, the court in the Lynette and James case would look just as harshly at James, as he left the house and did not bother to pay any money for child support after doing so. What this would mean is that the court is bound to add 10% onto what Lynette has directly contributed towards the home, because this is what the Kernott court added onto James's direct contributions to the home. That said, the facts of Kernott were a bit different than the facts at bar. In Kernott, the man had left the home and did not seek an equitable settlement until some 13 years after he had left the home. In this case, James has been out of the home for the past nine years. This would mean that in the Kernott case there was an extra four years of not paying child support, and, assuming that the court was trying to effect some kind of dollar for dollar offset for the lack of child support, the court in this case might not be as harsh on James – he has four years less of child support arrears than did Kernott, and this might make a difference. The two cases also have something else in common, and that is that, in each case, the Kernott case and the current case, the couple had a joint life insurance policy and the man cashed in his half of the policy to pay for a down payment on his new home. In Kernott, it was evident that the proceeds of the life insurance policy was split 50/50, and the man took the his proceeds and paid for the down payment on his home. Therefore, this fact was a bit of a red herring in this case, as it really should not have impacted the court's decision, as he was free to do what he wanted to with this money. In the instant case, however, it is less clear that this is what happened. Did James cash in the policy and take all the money from the policy and put this money on his own property? If this is the case, then the court will also use this as an offset, as he was taking jointly held property, and converted it to his own gain.14 Conclusion In this case, the court will look at the fact that James has not been paying child support, nor house expenses, for the past nine years, and use this as an offset for any kind of monetary contributions he has made to the house. If the court uses the formula in the Kernott case, in deciding what is fair and just, then James will probably lose some 10% of equity that he would otherwise have in the house, just looking at his financial contributions. So, if, say, James originally contributed ?30,000 towards the purchase price, which would mean that he his financial contribution would amount to some 15% of the value of the home now, and the court decides that this is how they are going to calculate it, and not award him any of the increase in equity, then his equity will be reduced by 10% because he has not been caring for the children, which would mean that his share would only be 5%. This is also assuming that the court will not award further value to Lynette for her work in caring for the kids while James is not around. If this is the case, and Lynette gets further credit for this, as might be possible under the Drake case, then James' equity would be even further reduced. Sources Used Abbott v. Abbott [2007] UKPC 53 Burns v. Burns [1984] Ch. 317 Burton, F. Core Statutes on Family Law. Basingstoke: Palgrave-MacMillan, 2012. Drake v. Whipp [1986] Ch 638 Herring,J. Family Law. Harlow: Longman-Pearson Education, 2012. Jones v. Kernott [2011] UKSC 53. Oxley v. Hiscock [2004] EWCA Civ. 546. Oldham, M. Blackstone's Statutes on Family Law. Oxford: Oxford University Press, 2012. Stack v. Dowden [2007] 2 WLR 831. Read More