Cohabitation, chapter 3 CILEX level 3 unit 7

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Can parties enter into a cohabitation agreement?
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.
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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.
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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.
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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.
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What are the two types of implied trust?
Resulting trust (direct financial contribution) and constructive trust (where parties agreed they would share the property).
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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]).
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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.
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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.
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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]
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What section of TLATA givers the court the powert o declare what shares the property is held in?
S14.
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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.
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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.
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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.
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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.
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Difference between formal relationship and cohab re duty to maintain children.
Both have duty to maintain their natural child financially.
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Difference between formal relationship and cohab re ability to seek s8 order.
Both parents may apply for s8 order relating to their natural child.
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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.
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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.
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Difference between formal relationship and cohab to terminate relationship.
Formal: ended only by court order. Cohab: ended at any time by either party.
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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.

Card 3

Front

What arises from Stack v Dowden?

Back

Preview of the front of card 3

Card 4

Front

How would an ex-cohabitee prove an implied trust?

Back

Preview of the front of card 4

Card 5

Front

What are the two types of implied trust?

Back

Preview of the front of card 5
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