Co-ownership on Family Home Essay Example

Co Co-ownership on Family Home Essay Co-ownership on Family Home Essay in Baumgartner v Baumgartner30, the court held that the foundation for the imposition of a constructive trust was that a refusal to recognise the existence of the equitable interest amounts to unconscionable conduct and that the trust is imposed as a remedy to circumvent that. The majority of the judges here considered the determination of the terms of a constructive trust in such cases. The Baumgartner 31principles, if properly applied, may achieve a reasonable degree of justice and equity in the determination of de facto property issues. However, there lacked clear guidance and reasonable predictability, and hence a difficulty to advise clients. The non-recognition of non-financial contributions means that, to succeed, a party must establish a Baumgartner 32type constructive trust or other equitable device. While the current position is a significant advance on the common law regime for resolving property issues between cohabitants on relationship breakdown, it remains imperfect and fragmented. In Canada, the Supreme Court of Canada in Pettkus v Becker33 used the constructive trust to award a woman an equal share in property acquired by her partner during a nineteen-year relationship, in which both were working together on a farm, concluding that he would be unjustly enriched if her contribution to the acquisition of this property was not recognised. The constructive trust in Canada has evolved into a broad equitable remedy for giving property based recognition for domestic contributions at the end of a non-marital relationship. This is seen in Peter v Beblow34, whereby, MacLachlin J made it clear that this constructive trust claim could be based on purely domestic contributions and in Nowell v Town Estate35 where the Court invoked the related doctrine of unjust enrichment to award a woman $300,000 after the end of a 30-year quasi-spousal relation-ship, despite the fact that the man continued to maintain his primary residence with his wife throughout the relationship. It is clear that the corpus is made up of English thinking with the traditional analysis, Australian bringing about quasi-marital property division with a constructive trust but on the basis of unconscionability, and in Canada good conscience as well as unjust enrichment. However, it remains unclear how receptive the courts are to the notions of unconscionability and unjust enrichment being the underlying principles of estoppel. This willingness does not appear to be obvious across the board and the approach of the English courts has become too rule-orientated. One of the significant shortcomings in the English law is that the courts may have become too rule-orientated, in searching for legal clarity, as reflected by the rigid interpretation of Rosset36 and, in particular, the requirement for direct financial contributions. Once the courts recognise that the common intention approach need not be dictated solely by the rigid rule, it allows greater flexibility for the courts to take into consideration a wider range of contributions, direct and indirect. The courts assessment should include consideration of the whole course of conduct between the parties, as well as the effects of sexual division of labour in the relationship and how that may impact on the claimants resources in terms of making contributions, whether direct or indirect, towards the relationship. Refocusing on these issues may cover the way for a principled basis of deciding family property disputes which is less gender biased. No doubt, it would be an easier approach to protect the cohabitants through the passing of legislation similar to those that protect married couples and civil partners and this seems to be the case today after the suggested reforms seen in Cohabitation: The Financial Consequences of Relationship Breakdown37 and Sharing Homes38 by the Law Commission. The vital importance throughout common law history of the trust creators intent has left instead a shifting sand of theory of what it is that constitutes a trust. All the adjectives express, implied, resulting, and constructive merely had us chasing the peripheral. Hence, it is undeniable that a better change is needed to mend the imperfection identified above.