A Constructive Trust - Essay Example

? Family Law Paper First Family Law Paper Lauren can seek remedy from the court by utilizing the common intention constructive trust which is a device that seeks to correct an injustice under the applicable law. A constructive trust is established where it is seen as being unconscionable for one party to hold a property to which another party has some kind of beneficial right to while denying the second party access or enjoyment of the property. It also ensures that the party that holds the title does not dispose of it in a way that is to the detriment of the second party or without the second party being heard. In this case the property in question is the house, which though held in Paul’s name, Lauren has an interest in because of their shared history in it and the fact that she did make a contribution of some sort to Paul’s acquisition of it. A constructive trust is implied in law in both a domestic and a commercial context. In this instance it is in the domestic context. The main features of the constructive trust are that it relies upon three basic components, the first of which is common intention. There was indeed common intention in the coming together of Lauren and Paul in their living together. There has not been up to now not been any agreement among the two parties, Lauren and Paul either directly or in an implied manner, been an agreement that they would be sharing the house out for the purpose of benefiting from it separately. The common intention was that they live together in the house, even though its title was under Paul’s name, Lauren was able to play her part in the common interest by paying for the utility bills and assisting with household expenses and thus freed up Paul’s income for use in servicing the mortgage of the property or paying for its acquisition. By contributing towards the household expenses and the utility bills she therefore can claim to have made a material contribution towards Paul’s acquisition of the said property. She thus has rights under constructive trust, to the use of the property. The common intention is both implied and actual even in the absence of any written agreement. The absence of a written or structured agreement cannot therefore negate Lauren’s right to the use of the property in question and therefore she is entitled to stay there together with the children that resulted from and during their cohabitation.1 The fact that they have lived together for such a long time anchors the argument of common intentions to live together even though they are not married. The second component of constructive trust is the detrimental reliance by the claimant. By detriment here is included the things that Lauren had to give up or make do without in order to ensure that Paul was able to acquire the property – the fact that she had to forego her job and chose to be a stay at home mother and take care of the children and also the fact that she gave up her State benefits to be used in the common household expenses and also the fact that she paid some of the utility bills. These are all factors to be considered in looking at the common intention constructive trust that protects the contribution that Lauren put into this enterprise. Lauren continued to live with Paul in the house even when the relationship became strained and even when she was treated to continued verbal abuse. She had every right to continue staying there and even now she has the right to stay there since the agreement that was in place that they would live together in the house is still in effect. And she has every right to go back there, together with her children, as long as she is assured that there will not be a return to the abusive and violent behaviour. Lauren, by virtue of her contribution to the acquisition of the property in question, would therefore suffer if the court or law determined that she was not entitled to its fair use and occupation. She should therefore have her constructive trust on the property remedied by having a right or say in the use and occupation of the property. She is right in her demand for a fair share in the use of the property since she did make material sacrifices towards Paul’s acquisition of the house, regardless of the actual amounts of her contribution. Thirdly, as the constructive trust bestows upon Lauren certain rights to the property, the denial of these rights to her by Paul would be unconscionable and the law has the instrument to correct that unfairness and ensure that she gets her due remedy. It would thus be unconscionable for Lauren to be denied her enjoyment of the rights to the property that her contributions to its buying, mortgage and upkeep entitle her to. The constructive trust will ensure that the situation is remedied in Lauren’s favour and ensure especially that her safety and that of the children are not in any way compromised2. Property estoppel is a legal mechanism that derived from equity. It is a claim against a property that is usually made by a party that may not be on the actual property title but can claim rights to it based on some other premise. Property estoppel is an extension of the constructive trust. It in effect precludes one from denying the existence of a state of affairs that had previously been deemed to exist.3 Under this remedial action under law, Paul cannot deny the existence of the agreement under which they lived for all purposes as husband and wife at the house that he owned. Therefore Lauren should be allowed back in the house that the two and their children previously occupied. In order for the remedy to be claimed under the property estoppel device there are a number of conditions that must be met.4 The three conditions that must be met are encouragement, detrimental reliance and the owner taking unconscionable advantage of the other party by reneging on an earlier promise. In the care of Lauren and Paul, there was a mutual agreement in cohabiting and having children together in Paul’s house. The two were therefore together and Paul encouraged her to leave her job and live with him while she took care of the children. The fact that she contributed her income and later on her State Benefits to the household expenses and paying utility bills is indeed testament to this. They would still be continuing to live together had it not been for the effects of last night’s altercation and Lauren’s need to escape together with her children and seek refuge elsewhere. Thus the requirement of encouragement and perpetuation of the agreement is established. The second condition that of detrimental reliance is premised on the fact that as of now Lauren and her children do not have any place to stay in. They have temporary refuge at her friend’s house for now but they are in need of a more permanent habitation and the house in which they were previously domiciled as a family is it. This detrimental effect is to the knowledge of Paul since it pertains to not just to Lauren but to their children as well. This means that the second condition for property estoppel is thus met. The third condition that needs to be met is that by not allowing them back Paul would be seeking to take unconscionable advantage of Lauren and the children by denying them a place to live in, the place that they were used to and where they all used to live together. He would thus by denying them entry and the right to occupy the property be reneging on a promise that was earlier implied in that they were occupying the house as a family and it was common knowledge to all of them that was the way they were to continue living. It may not have been a signed and or an explicit promise or agreement made by Lauren – as may happen when a couple is formally married – but it was nevertheless an agreement albeit an oral and informal one. So by going back on his word or on what how had led them all to believe by not allowing them to stay in their home he would be in effect reneging on what he had promised both his wife and the rest of his family.Thus all the conditions for proprietary estoppel having been met, Lauren has cause for going back to her home together with her children.5 The two doctrines, common intention constructive trust and proprietary estoppel also have certain common grounds that the court will also have to look at in support of the application. They both are reliant on the unconscionable acts of Paul of keeping Lauren away from the home that they have together established and in which they and their children have lived. This needs to be remedied by the court and for Lauren to be able to go back to their house with no difficulty or hindrances. They are also both dependent upon agreements that have been made and implied between Lauren and Paul and which, if departed from, would have a detrimental effect on the lives of the three children and Lauren and their rights have to be re-established. The Family Law Act 1996 provides an articulate and comprehensive way of dealing with all aspects of Family Law including separation, divorce and living together or apart for any reason. It provides relief and remedy especially for sufferers of domestic violence within its context. The Family Law attempts to very broadly look at all the issues surrounding not just the coming together of spouses in matrimony but also any other types of interpersonal relationships . There are several ways in which Lauren can get protection in respect of the domestic violence visited upon her by the man that she has lived with for a period of ten years. The first of these and which she must get immediately is a non-molestation order against Paul. She can now get a non-molestation order against Paul, even if they are not formally married. A non-molestation order will ensure that Paul does not molest either Lauren or any of the children and will thus protect them from any injury or harassment that may be inflicted on them. A non-molestation order is given to ensure the safety and protection of victims of domestic violence. Lauren has the option to ask the court to impose this non-molestation injunction as soon as possible to guarantee the safety of both Lauren and her three children. The non-molestation order will be against both actual physical harm but also against other psychological molestation in the form of verbal and any other kind of abuse. It will also cover any kind of harassment be it by spoken or written word or even via cell phone text message. The children do particularly need protection since they were unfortunate enough to be in the house when the last episode of abuse of their mother. This order will ensure that Paul will be punished by the law should he attempt to abuse any of them again and will thus protect Lauren and the children6. The non-molestation order will also protect any of their property from being damaged or destroyed by Paul as well as order that he continues to pay for their upkeep and any household bills. Lauren can also file the non-molestation order without any reference to Paul, just in case he may turn out to react in a harmful or violent way. Lauren also has under the Family Law Act 1996 the opportunity to apply for public funding for her legal fees for obtaining this any other orders that she may need to pursue7. The Act in this way ensures that those that have suffered from domestic violence are protected and do not have to continue living in fear. The Family Law Act also provides other remedies that are of benefit to those who have suffered from domestic violence. One of these remedies is the occupation injunction which allows victims to go back to their original homes but with higher protection of the law, taking cognizance of whatever happenstance forced them to leave it in the first place. This mechanism was put into specifically protect spouses who had been forced out of their homes and who needed the support and protection of the law to go back there. Lauren could thus get an occupation injunction that allows her and her children to go back to their former home, without any objections or hindrances from Paul.The act allows the court to order her immediate move into the house and will thus ensure that their lives continue without any interruption or with minimal disturbance. This order will ensure that they are able to return to and occupy the house they were living in. In addition to allowing them back into the house he order will also ensure that Paul will have to keep his distance from Lauren and the children and ensure that they are not harmed. The court could order him to remain in only one bedroom in the house and thus cease to be a danger to Lauren and to the children, with orders that if he does so he is liable for arrest and imprisonment. This will ensure that they are not in any danger of physical violence even if Paul comes home intoxicated and wants to continue with his habit of being abusive to them. In addition to ensuring that Lauren and the children have a roof over their heads in the form accommodation the Act also ensures that all their living, health and schooling expenses continue to be met as well as protecting Lauren and the children from any harm that may be caused to them by Paul in revenge for any of the injunctions that they will get filed against him. Even though the occupation order grants Lauren the use of the house and the right to be in the house, it does not grant her any proprietary rights over the property since it is still in Paul’s name. It does however give her a say if Paul decides to sell the property - she has the right to question it and at least ensure that discussion on alternative accommodation for her and the children happens. Paul does not have the carte-blanche to just dispose of the property as he may wish8. In this way the Act protects Lauren and the children and ensures that they are able to go back to their previous living arrangements. The Act thus works to protect not just the interest of the bread earner but also the victims of domestic violence and can be used to alleviate the situation and especially protect the interests of the vulnerable members. Bibliography Barnes, L. "Defining Detriment" Family Law Week. Accessed June 27, 2013.http://www.familylawweek.co.uk/site.aspx?i=ed34330. Carroll, J, and J McDermott. "Should I stay or should I go?" Family Law Journal, 101 (November 2010): 12-15. Accessed June 27, 2013. http://www.russell-cooke.co.uk/clientUpload/document/file/Occupation%20of%20the%20family%20home%20pending%20divorce%20-%20Family%20Law%20Journal%20-%20November%202010.pdf. "Chapter 7: Constructive Trusts." Oxford University Press: 278-320. Accessed June 27, 2013. http://fds.oup.com/www.oup.com/pdf/13/9780199219049.pdf. Hull, I M., and S Popovic-Montag. Proprietary Estoppel - Consider It A Claim. Hull & Hull LLP. Accessed June 27, 2013.http://www.hullandhull.com/Text-From-2011-Breakfast-Series-Presentations/January-2011-Proprietary-Estoppel-Consider-it-a-Claim-Against-the-Assets-of-an-Estate.pdf. Nowell Meller Solicitors Ltd. Leaflet No.11 – Domestic Violence. Accessed June 27, 2013. http://www.nowellmeller.co.uk/cms/documents/FL11.pdf. Rights of Women. A Guide to Domestic Violence Injuctions. Accessed June 27, 2013. http://www.rightsofwomen.org.uk/pdfs/domesticviolence2008.pdf. Read More