T5 EQ

·         "Sharing Homes (2002)" - Whilst didn’t overtly recommend a system of statutory legislation to be passed, it did make some criticism of the current law. No legislation change since following the recomendations. 

o   1 - somewhat unrealistic to identify common intention of the parties when they do not think about it in such a legalistic way

o   2 – Court should take a broader view of the kinds of contributions from which they may infer common intentions (counter Lord Bridge in Lloyds Bank).

o   Looking after children and domestic work does not grant a share, which seems harsh

o   The size of the share decided by the court is inconsistent. A broader view would help this.

o   More couples should be encouraged to make their position clear

The courts have somewhat taken a broader approach in quantifying the size of the shares (as evidenced by Stack). “Holistic approach” taken in Hapeshi v Allnatt [2010] undertaking a survey of the whole course of dealing, and taking account of all conduct (para 50). Substantial contribution to conversion works was held as acceptable in Apsden v Elvy [2012], citing Stack and stating the law had moved on since Lloyds Bank. 

·         Cohabitation (2007) - Concluded the law should depart from the existing approach, based on property rights and give the courts similar powers, to redistribute property, to those that exist when a couple divorce.

o   “The scheme may operate when a couple had been living together for two years. If couples wished they could make a written agreement that they did not want the statutory scheme to apply”.

o   “The court could look at the economic benefits each party had brought to the relationship (e.g unpaid work, savings, child care, financial support for the family) and also consider the economic disadvantages (e,g giving up work, pension loss, inability to take promotion) each had suffered”

o   There is a similar scheme in place already in Scotland, as manifested in the Scottish case of Whigham v Owen [2013], which operates as a scaled down version of divorce. It received support from Lady Hale in Gow v Grant [2012] UKSC 29.