Yes; they are unlikely to be viewed as undermining marriage. A cohabitation contract is likely to be valid if both parties took independent legal advice.
1 of 19
How is Sutton v Mishcon de Reya relevant to cohabitation contracts?
C sued Sols who drafted cohab contract to live in master/servant relationship and give all money. D changed mind. C sued sols on basis of negligence. Ct found it was contract for cohab and not enforceable.
2 of 19
What arises from Stack v Dowden?
A property in joint names belongs to both equally; and a property in one party's name belongs solely to that party.
3 of 19
How would an ex-cohabitee prove an implied trust?
He would need to show that the parties intended that the property in joint names would not belong to them euqally or a property in one party's sole name is actually held for the benefit of them both.
4 of 19
What are the two types of implied trust?
Resulting trust (direct financial contribution) and constructive trust (where parties agreed they would share the property).
5 of 19
Are resulting trusts always appropriate in respect of a family home?
No; they have no flexibility to take account of other contributiosn the person might have made, such as paying the mortgage and bills (Stack v Dowden [2007]).
6 of 19
What are the two requirements for a constructive trust (set out in Lloyds Bank v Rosset [1990].
1. The parties must have had a "common intention" that the property would be shared; and 2. the person seeking an increased share must have relied on their common intention in a way that caused some detriment.
7 of 19
What had the man said in Eves v Eves [1975] that led to a constructive trust being held?
The man told the owman that he house was only in his sole name because she was too young. This showed a common intention to share the property.
8 of 19
In which case did the CoA say that the court was trying to decide what was fair considering the dealings between the parties?
Oxley v Hiscock [2004]
9 of 19
What section of TLATA givers the court the powert o declare what shares the property is held in?
S14.
10 of 19
What are the facctors in s15 TLATA that the court must consider in making an order?
The reason the property is held, does its purpose as a family home continue and the welfare of any children living there.
11 of 19
Difference between formal relationship and cohab re financial support
Formal relationship: duty to provide financial support during marriage/CP; cohab: no duty of financial support.
12 of 19
Difference between formal relationship and cohab re court's powers to make financial orders to achieve fair outcome on breakdown
Formal: wide range of powers; Cohab: Only apply property and trusts law.
13 of 19
Difference between formal relationship and cohab re PR for children.
Formal: both parties have PR automatically for their natural child. Cohab: Mother has PR. Father does not unless he acquires by being registered as father on birth cert or by agreement with mother or by court order under CA 1989.
14 of 19
Difference between formal relationship and cohab re duty to maintain children.
Both have duty to maintain their natural child financially.
15 of 19
Difference between formal relationship and cohab re ability to seek s8 order.
Both parents may apply for s8 order relating to their natural child.
16 of 19
Difference between formal relationship and cohab re intestacy.
Formal: if one party party dies without a will, other will inherit all or part. Cohab: no automatic inheritance right.
17 of 19
Difference between formal relationship and cohab re right to occupy house.
Formal: statutory right to occupy the shared home unless ended by a court order. Cohab: No statutory right to occupy.
18 of 19
Difference between formal relationship and cohab to terminate relationship.
Formal: ended only by court order. Cohab: ended at any time by either party.
19 of 19
Other cards in this set
Card 2
Front
How is Sutton v Mishcon de Reya relevant to cohabitation contracts?
Back
C sued Sols who drafted cohab contract to live in master/servant relationship and give all money. D changed mind. C sued sols on basis of negligence. Ct found it was contract for cohab and not enforceable.
Comments
No comments have yet been made