Good morning and welcome everybody. Nice to welcome you to today. This is the course through data law. The introduction to family Law and practice, a solid foundation for new entrance to this area. My name's Safta Mahmoud. So this thing is session six and By the end of this session we will have then got to the midway point of this course. So this course and as you know, is consisting of 12 sessions in total whereby I'm going through various elements of family law and practice with you and how distant ties in with other interrelated matters. So each course, then each session rather is approximately an hour in length and the aim is to give you a comprehensive and detailed grounding of the four main areas in family law, which are marital breakdown, uh, then domestic abuse uh, than the law relating to finances and finally, the law relating to Children. So today that I'm going to be continuing with looking at the surrounding domestic abuse with then completing that area and then we'll be looking at somebody area surrounding finances and I'm looking at the law as of October 2022. Okay, so today, then, like I said, I will be completing going through somebody aspects surrounding the domestic abuse act of 2021. You remember in the previous session, I spent some time going through this with you and explained what the various aspects of this act were insofar as the position with, where we stand when it comes to matters surrounding the changes that have been brought about insofar, as the active concerns. We'll have a look at this and see where the ground lives in so far as some of the changes that we've had in so far as this is concerned. So, I'll be taking you through some of that, and will then be looking at somebody aspects of running uh the homes and occupation rights insofar as that's concerned, we'll have a look at that and see what the position is insofar as that's concerned. Well, then have a look at the protection of uh the homes. Right, So, how do you go about protecting the rights? And then we'll look specifically at the position surrounding unmarried parties to see what the position is there. Uh and then I'll take you through some of the aspects insofar as proprietary estoppel is concerned to see where we are and how that fits in with the general scheme of the advice that you'll be providing in that regard. Okay, so that's the aim. So, let me then start with the position surrounding continuation of the law as it relates to uh domestic abuse. Now, as you'll appreciate, and this is an area which has continued to feature in terms of changes and updates as it applies to the law relationship, domestic abuse. And as I mentioned previously, What we found is with the new domestic abuse act, which got royal assent at the end of April 2021. It's brought in through piecemeal, various elements of change to the law, on, uh not just personal protection, but also other areas uh, relates to changes in relation to housing related to criminal law, in relation to immigration, in relation to other aspects from which relate to when we're advising parties on all areas. And this is where the special measures have also been amended. Special measures. Many of you would know is whereby when we're dealing with cases, whether it's in the family law context, in civil cases and criminal cases, we need to ensure that there is the availability of full participation for parties in these proceedings. And this is when the family court As a consequence of the domestic abuse after 2021, the court is now under due to consider whether parties or witnesses are vulnerable and in particular, there must, of course, taken in concerns about abuse into account and therefore include special measures. This isn't a new venture in the sense that we've had parties patient directions in place for many years in family law. And there was the updates to that back in November 2017. But what's different now is there's this assumption which has been booked in now, and this is as a consequence of section 63 sub paragraph one of the Domestic abuse Act of 2021. So that therefore sets out the assumption of vulnerability and the way that works, is this, if you look at Section 63 paragraph three of the domestic abuse act. What it provides is that where a person is always is a victim of domestic abuse? Always at risk of being a victim of domestic abuse carried out by a party to proceedings. A relative of a partisan proceedings or witnessing the proceedings, that it is now assumed that the following will apply. And that is they are like the participation in the proceedings is likely to be diminished by virtue of their vulnerability in terms of the quality of the evidence that may give and their participation in the proceedings. Okay, so putting it simply, what it means is if you've got, say, a party uh or a witness in family proceedings. So let's take private Children or cases, for example, So let's take the mother who is a party within those private Children of proceedings, where say the father has applied for an order for child arrangements, spend time within the mother is the respondent and she's a party to proceedings. Then if she is a victim of domestic abuse or is at risk of being a victim of domestic abuse, perpetrated by any party to proceedings in this case, the father or a relative of his or any other witness than it is now assumed that her she's vulnerable and vulnerable. Therefore, in terms of the quality of the evidence she may give and her participation. Okay, so she doesn't need to evidence necessarily that vulnerability. She doesn't need to have a finding of fact determined, determining that she's vulnerable. This assumption is now there and therefore because of that, what it does mean is the court should then be giving regard to what type of methods should be in place to ensure her full participation. So that means, for example, that there is a need for, for example, a screen uh to be given to her when she's giving evidence, if it means that she gives evidence through video link or through other forms of remote uh methods of participation, if it means that when she is giving evidence, she has her camera switched off so that the alleged perpetrator cannot see her, for example, uh and I can't see her and maybe potentially subjected to aggressive behavior there in that manner. If it means that she has a separate entrance and exit to the court building, for example, if it means that she has a separate waiting area from that of the other party, for example. So those are some of the things that we need to think about to ensure her full participation in those proceedings. Okay, and this is where the uh domestic abuse statutory guidance comes into play again. So, the guidance that I referred to in the previous session of july 2022 you've got the link there again. And this emphasizes therefore the special measures in the family courts and paragraph 38 388 for example, uh emphasize that family scenes in England Wales have dealt with in the family and the family division of the High court and that in terms of special measures, this is obviously something that therefore does need to be born and taken into account accordingly in the family courts. Now the other major change which has been brought about by the domestic abuse Act and this is more recent is the position surrounding cross examination and in particular the concept of how we deal with cross examination in family proceedings and the prohibition of cross examination. So this is a major change in the way in which we run these types of cases. And the main provisions are set out within sections 65 and section 66 of the domestic abuse sector 2021, 65 relates to family proceedings and section 66 relates to civil proceedings. So let's see how this 10 ties in. So what this provides for now is that in the case of family proceedings, it that means that there is now this new provision for be inserted in the matrimonial and family proceedings Act of 1984. So that there is now provided the following. So firstly, you've got 31 R which basically in that situation would prohibit cross examination in cases with the victim is one that has had an offense committed against them uh specified offense which I'll come to shortly. 31 S relates to prohibition of cross examination where persons are protected by injunction 31 t relates to prohibition of cross examination, where there's other evidence of domestic abuse and then you've got 31 you where there's a direction that the court can give for prohibition of cross examination if the court is satisfied that either condition quality condition is met or the significant distress condition. So what does this actually mean in practice? Well, you need to ensure that when you are supporting victims, they understand now the position surrounding cross examination and in terms of whether the alleged abuser is able to personally cross examine the alleged victim and whether the alleged victim is required to personally cross to personally cross examined the alleged perpetrator. So the situations where that may occur are now extremely limited and hence the thinking behind it. So let me just look at the kind of context in which this new provision is coming and then we'll look at the actual specific changes insofar as that's concerned. So we need to be familiar with the case of PS and BP. And this is one of many cases which has really emphasized the difficulties in this area. So what happened in P. S. And B. P. In 2018 was this you had a private Children or case where the mother was fully represented by lawyers and the father was a litigant in person. So he was doing the case himself and the mother raised allegations of domestic abuse. In fact, the father had put his application for child arrangements, spend time with in relation to each three year old daughter and the mother raised two very serious allegations of domestic abuse against her father. Firstly, she alleged that he had raped her and secondly, she alleged that he had subjected to non fatal strangulation. Obviously two very, very serious uh allegations which then needs to be tested. Now when it came to testing the evidence and the mother being cross examined, the father wanted to do that directly, He didn't have lawyers, he couldn't afford a lawyer, he wasn't able to get public funding and therefore he wanted to cross examine her mother directly. But this is where the judge prohibited that the judge took the view that that would be inappropriate to subject the mother to potentially further trauma and she would be potentially cross examined on the exact issues that she alleged that he had subjected her to in terms of domestic abuse. And therefore, the judge was not prepared to let the father asked those questions directly of the mother in those circumstances and instead, what the court did was the judge asked the father to give the questions to the judge, who in turn would then put those to the mother, which is exactly what happened. But the judge, even though the questions were put to the mother, the judge was perhaps not as robust as what one would have hoped in terms of the manner in which those questions would have been put to the mother. A lot of what the judge did was repeating back to the mother what her answers were in terms of the questions that were put to her. And this is where findings were made and this is where the father then appealed on the basis that he argued that his right to federal had not been fully managed because of the manner in which the questions were put to the mother. And this is where an appeal. The court did say that in fact there is no law or there certainly wasn't at that stage, which prohibits the court from allowing the alleged perpetrator to cross examine the victim. But if the court does, then it's important to have a ground rules hearing. It's important to know the basis upon which that would be done. It's important to know what questions will be asked and in what context. But here there was a failure to understand that in fact that entitlement is there if necessary and it can be done if appropriate in these cases. Well, this is where the law has now changed. So that now, as from the 21st of july of this year, 2022 because of these changes brought about by section 65 66 of the Domestic abuse Act. It means that in proceedings, and if we concentrate on family proceedings, the effect of section 65 of the act is this if the same example, we've just looked at where say the father is seeking chart arrangements and these allegations against him of abuse and the matter is listed for finding a fact hearing. He would not be permitted to personally cross examined the mother any longer if he has been convicted of or given a caution for, he's charged with a specified offense okay, against the other person. So if he's convicted of all been given a caution or is charged with a specified offense which are most offenses against a person, then he would not be able to personally cross examine the witness or the other party in those circumstances. If that other person is the victim or alleged victim of that offense, caution or conviction, so he won't be able to do that anymore. So that's the first thing secondly, it means that the victim will not be expected to personally cross examine the alleged perpetrator in those circumstances. Okay, So they won't be required in those circumstances. Again, it's very, very important to ensure that people are therefore aware of this. So they don't know what their rights are going forward. Furthermore. What if there isn't a conviction, caution or the person hasn't been charged with this, where you stand there? Well, this is where you need to look, see if there's an injunction in place. Okay? So what it means is that now, if, say the father and example of been using is subjected to an unnoticed protective injunction in force against them. So that if, say he wants to cross examine the mother and she has obtained an unnoticed protective injunction against him safe, anomalous station order and the occupation order in that situation. He will not be able to personally cross examine him in those circumstances. And similarly she would not be expected to cross examine him in person because the injunction is against him on her behalf against very very important to make sure that clients are made aware of this and therefore this change that has been brought about then it goes further. What if there is the absence of convictions of cautions uh or charges for specified offense against the victim in those circumstances? Or if there is the absence of evidence of domestic abuse in the form of injunctions then what do you do? Well this is where the court can then still prohibit the cross examination if there is other evidence of domestic abuse. For example if say the victim has acquired public funding and therefore they're satisfied the gateway evidence for purposes of public funding. So therefore as many of you know to obtain public funding under the legal aid sentencing and punishment offenders act of 2012, there's the gateway evidence to demonstrate domestic abuse such as for example if the person has been to the G. P. Who has been able to certify that they are satisfied that they are the victim of domestic abuse. So if the person has got any of the gateway evidence and therefore entitlement to public funding on that basis, then again, that will mean that the alleged perpetrator will not be able to cross examine the alleged victim in those circumstances. So that's where that comes into play, but if there is the absence of that, so if there's the absence after the conviction or the caution or to charge or the injunction or evidence of domestic abuse, then there is one final way in which the court may prohibit personal cross examination. And this is where if the court is satisfied that it would appear that the quality of the evidence that the witness may give will be prejudiced if they will be to be cross examined personally or if it's likely to cause significant distress, if they were to be cross examined personally by the other person. So this is another one which then gives the judge that ultimate discretion at the end to see whether or not to permit and therefore to allow the other person to cross examining those circumstances. So, therefore, that can also be done. And there are similar provisions now which have been brought in Under Section 66 in several proceedings also. So what's the alternative? So, if you do come within any of these aspects of what therefore the alternatives, what the court, what can the court therefore do in these circumstances to ensure that the person is entitled to have the evidence tested and also to ensure that there is a certain quality of arms in that regard. Well, this is where the court with a nasty alleged perpetrator, whether they have got uh other representation available legal representation if they have and of course they would be invited to arrange that. But if not, then this is where the provisions that have been brought into effect are such, that the court can now provide the funds so as to enable the person to get financial assistance sort of this provision and assist the alleged perpetrator, who will now be able to get financial assistance from court funds to have a lawyer act for them in those circumstances, in cases where they have still alleged that they have subject to the other person to domestic abuse and where for example, they may be seeking contact with the child and they may not be able to afford a lawyer or they may not be eligible in those circumstances to be able to obtain public funding. So, the courts service the court funds were done, permit a lawyer to then be made available in these circumstances. So therefore one is not reliant upon a legal aid agency, but instead, the court can then to fund in these circumstances. So, this is where these provisions have come in now, as from the 21st of july this year and a lawyer who would then be responsible for assisting is known as a qualified legal representative. So some of you may have already applied or know of colleagues in the firm who may well have applied to become a qualified legal representative and to do so, you need to be a solicitor, barrister or silence representative and you do need to have evidence of cross examination and experience of dealing with matters involving vulnerability, vulnerable witnesses and also domestic abuse. And therefore you can join up to with law cited to become a qualified legal representative, which effectively means that you can then be called upon and asked the court to then conduct cases in this regard. So effectively, if there is therefore a matter that is then listed, what entitles you to do then is to be called upon to then take instructions from the alleged perpetrator. You won't be formally acting for them, but you'll be taking instructions from them to enable them to formulate your cross examination and then you'll be able to put the questions to the alleged victim on behalf of the alleged perpetrator. So you're not acting for them, you're not going on the record, but you're assisting them. Of course, in being able to put those questions to the victim and therefore one it's avoiding the alleged perpetrator from cross examined personally. And secondly, they will have the benefit of of obviously yourself as a qualified legal rep to be able to put those questions directly in that way and therefore to ensure that justice is done in ensuring that the evidence is appropriately tested. Okay, so it's something that's worth looking into, and therefore you can see that this is another significant innovation that is coming as a result of the domestic abuse act of 2021. Now, as I mentioned earlier, the actors also brought about new offenses as well. And there's, for example, there was this offense that came into effect in relation to disclosing private sexual photographs and films. Section 69 of the domestic abuse act. Previously, it was the case that if anybody does disclose private sexual photos and films of somebody without their consent with the intention of causing distress. And that was an offense. But now this has been extended to now include the situation where one threatens to do this as well. So it's not just when the person does disclose its whether even threatened to disclose this material, that is also an offense as well. So that's pursuant to section 69 sub paragraph three of the Domestic abuse Act of 2021. There's other offenses as well as the offense of nonfatal strangulation, for example, which came into effect on the seventh of june of 2022 or so. So those there are other offenses therefore, that have been brought about As a result of the domestic abuse after 2021 days. The offenses which relate to the fact that if somebody carries out an act of abuse overseas and if it's an offense overseas and the same act can also be an offense here in England Wales then there can be prosecuted here in England Wales. Even though the action actually took place took place overseas. So there's those have various types of offenses. There are other offenses and these are some of the ones which the new actors brought in in that regard. Now the other aspect is that which relates to matters related to medical evidence of domestic abuse. So many of you will know that those of you who do assist clients by providing them with assistance through acquiring and apply for public funding for the legal aid agency. You'll be aware that one of the ways in which one could secure the gate or evidence to secure public funding in terms of the merits test was to obtain the necessary confirmation from health provider particularly from A G. P. That the person concerned is the victim of domestic abuse. So if for example say the man or the lady went to their G. P. Who examined them who spoke to them and was satisfied that they were the victim of domestic abuse then that's where they can then provide that confirmation in writing which then would enable the gateway evidence to be provided so as to secure the funding in terms of the notes test. And And so far as this is concerned the changes that we've had as a result of this are such that what we have now found is that as from one October 2021 uh the if any health providers such as a G. P. Was providing for provision of this information they can no longer do. So those who got section 80 of the act which provides that no person may now charge a fee or any other remuneration for the preparation or provision of evidence relating to an assessment of an individual carried out by that health professional under qualified medical Service contract if it's provided for basically the purposes of requirement public funding. So it's important to bear that in mind. Also Now the other change which I want to emphasize insofar as how the domestic abuse act has then certainly change matters is that which relates to the position surrounding these barring orders. Section 91 14 orders. So this has also brought about a significant change in the way in which we run these types of matters. So let me just put this into context first and we can see how this is then changed the way in which we run these types of cases. So this is where what we're looking at is the situation surrounding the use of section 91 14 of the Children. So to put this into context, this would be relevant whereby let's say you've got a case where you in court it's a private Children law matter and say the father has applied for an order for child arrangements spend time with and let's say this is not his first time, he's applied a few times. And every time this is the third time he's applied, let's say And once again the court has deemed that the most they will be prepared to grant him is an order which relates to indirect as opposed to face to face supervised contact. Now, the mother is concerned that this is the third time he's applied and to him money is no object. So he'll keep reapplying. He's the father and therefore he doesn't need the court's permission. He comes under section 10. Subsection four of the Children act and therefore he can apply once again for a further application chart arrangement, spend time with him by doing so. It's obviously causing the mother and the Children to distress because he's he's bringing these further applications. It means that mother once again needs to then be represented and to attend court and to go through once again that process. So therefore this is where section 91 14 comes into play. Because what this has provided for for many years is the fact that a person can, in those circumstances at the conclusion of the proceedings, asked for an order that the person concerned in this case, the father an example have given you if he does re apply for further order, whether it's a charred arrangements or any other order that specified if he does re apply, then he would require the court's permission. And and therefore it would bring them into the category of requirement of court's permission to do so, And therefore the court will attach a section 91 14 condition to the order that's made and the court will only give him permission. So if it does, for example, we apply for contact, the court will only give him permission if it's the case that he can show that there is a material change in circumstances since the last time that the proceedings were concluded. Otherwise, he simply would not be able to secure permission and therefore he won't be able to pursue his application. Now, it has been the case that insofar as this this type of application is concerned uh as well as cases where there has been situations in the example of just giving you, where there's been a history of meritorious applications. That's one way in which we have had a 91 14 attached. There's been other situations, there has been case law which has said that even though there hasn't been a history of meritorious applications, if by the person reapplying it's going to cause, say, the other, the care of the child or the child an unmanageable risk of harm. Then in that situation, the court once again, has been able to attach to 91 14 in those circumstances, that's the case. Well, now it's gone even further. So now, what's happened is as a result of the Domestic abuse act. This change, which has come into effect us on the 19th of May, this year, 2022. The change now is that section 9 to 18 has been amended even further, so that it now provides that the court may make a section 91 14 direction, where amongst other things, they are satisfied that the making of this will uh otherwise by not making it, rather it will otherwise put the child consent or another individual at risk of harm. So putting it another way, what it means is If, for example, in that case, I've just mentioned, if the court is satisfied that, say, the mother and child have been a victim of abuse, perpetrated to them or at risk of by the by the other parent, for example, and it may place either or both of them at risk of harm. And this is where the court can now attach this 91 14 to the order, and therefore the effect of that, of course, is the person the other person concerned would not then be in a position to be able to bring this further application unless they can show that there has been a material change in circumstances. So, that's the thinking behind that right? And the court can make this order either by way of an application sort of may well, somebody may well lodge an application, normally at the conclusion of the proceedings and the court can in fact even make disorder of its own motion. So, you've got two options there insofar as that's concerned. Okay, it's really, really important to to bear that in mind. Okay, so that's where that comes into play. And this provision was brought in recently on 19 May this year. So it's still relatively new and therefore obviously practitioners need to be aware of that and it's brought in as a result of Section 67 of the domestic abuse act of 2020. Okay, so you got that provision there. Right, okay. So that covers a fair bit on the law surrounding domestic abuse. So you can see we spent a fair bit going through first and foremost, the Family law act of 1996 in the previous couple of sessions and also the position with the protection from harassment act in the previous session. And we then spent some time looking at the changes to the law and domestic abuse brought about As a consequence of the domestic abuse Act of 2021. So I hope that's giving you a really useful grounding on some of those areas. What I'm now going to be doing, uh for the remainder of this session. And the, for the next couple of sessions is I'm going to be looking at the positions surrounding finances and really, we we deal with matters surrounding assisting not just married persons, but also civil partners and also persons who are were cohabiting when it comes to financial aspects surrounding relationship breakdown. So, with that in mind, I first want to consider the position, So adding the home and occupation rights to see what the current position is insofar as this is concerned. Okay, so this is where when you are dealing with family disputes is obviously very, very important and to be aware of the respective property rights that people may well have, particularly when you are looking at the position with the family home and as you can imagine, the family home is often going to be the main asset in the family and therefore you need to be clear about whose name the house is under and whether or not the other person can or should get their name on the title deeds, if they have, then what's the position, If they don't, then what rights to have, should they be severing the joint tenancy? For example, those type of questions are ones which I'm going to be answering now in this discussion with you. So, when you are taking instructions, then it's very important to know about what rights, if any the person has in relation to the family home. As you can imagine, the family home will often be one of the major assets that people will often be litigating on. And there's various ways in which the spouse or civil partner can then acquire a variety of occupation in the family home. So that's the first thing you need to be thinking about putting this into context. Let's think of a situation where, say you are instructed by say uh say mrs jones, the wife in a case where she comes to see you and she's worried about her future, she's contemplating divorce and she wants to know what the position is relating to the house. So she's worried about what may happen if she does instigate divorce proceedings, is she going to stay in the house is gonna have to sell it, You're gonna have to transfer it. And therefore these are obviously really really important questions. So what you need to look to see is where she stands in so far as occupation of the family home. So firstly you need to ask her and check the deeds if necessary. Is she a soul on of the property if she is, if she owns the house and of course it gives her the right to occupy the house. So she legal owner of the property and if she's not sole owner and she may be a joint owner to ask her whether she owns the property jointly with her husband. And if so when the personal property, they would have been advised as to the two ways in which they can acquire a property is joint tenants and as tenants in common. So therefore you need to ask her about that and see what the position is there. So that the legal estate has to be held jointly as joint tenants, but the beneficial interest in the property can be held as joint tenants in common. And you'll be aware of the difference in the sense that if you acquire the property as beneficial joint tenants, then that's where the right to survive ship comes into play. So that when one of them dies, say the wife was to die first, then if she held the property as beneficial joint tenant uh and therefore joint tenancy law and equity then upon her death, her share of the beneficial joint tenancy will go automatically to the husband through what's called dividers. Fire ship, the juice macros. Nd as it's referred to in latin. So therefore whatever she's put in her will, whatever her intestine. See provisions provide for that will not take effect. Instead it will go automatically to the other joint 10ant in this case, the husband was if she held the property as tenants in common inequity, and even though the legal estate has to be held jointly, so upon her death, the other joint and will become the sole legal owner in terms of the equity in the house, the proceeds in the property, if it was held as tenants in common in whatever share that they had, then depending on what she's put in her will go through the intestine, see it will go through, they're not automatically to the other person. So for example, if they separated and she made a will and she left her share to say her parents, for example, then when she died, you know, the legal estate would then go to husband so that he would then become the sole legal owner. The equity, the proceeds of property under the tenancy in common provisions and through her will will actually go to her parents. Okay, So that's the kind of thinking behind that. And therefore when you are advising couples, it's very important to be able to advise and ascertain the position as to how they hold in the property, whether it's as joint tenants in common. So like I said, if you are for the wife see she firstly has that right to occupy. So whether you're a wife, whether you're her husband, whether you're for civil partner, see if the older house solely or see if they only jointly. Now, if they don't, if they don't have the house in their name, either solely or jointly, then you may want to see whether or not they need to think about acquiring a beneficial interest. I'll be going through that with you shortly. This is going to be particularly relevant for couples who may be or have been cohabiting, for example. So I'll take you through that shortly And then the other option, particularly if they are married or if there are several partners is you need to think about the right of occupation on the section 30 of the Family Law Act, 1996. So as you recall, I did discuss this with you in some of the earlier sessions, in so far as some of the bundle of rights that people have when they get married or enter into a civil partnership, the so called married to write to the consortium. And one of those significant rights is the right to occupy the family home. Now, you can only utilize this in relation to the one property. Okay? So it's important to be that in mind. And therefore with that in mind, you need to think about which home it is. So it can only be used in relation to the family home, the home they lived in, our intention to be living in as the family home. So when say, husband and wife get married, if the houses and the husband's name, the wife by virtue of marriage to him has the right to occupy the property. And you remember in the previous sessions, I did explain to you that when you do get conditional order for the divorce, it's not always advisable to apply for final order because at that stage, until the finances are closeted resolution. Because if they do apply for final order and your client is occupying the property on the base of section 30 then upon final order, they lose that right. And that's we can have those difficulties. So, therefore, it's very, very important to be able to exercise this right to be able to occupy and this then ties in with some of the rights that we'll be looking at when we're advising cohabit ease the law and practice and what the position is on that. So what cohabit ease won't be able to do is they won't be able to rely upon this right of occupation I've just mentioned. So the section 30 family 1996, right? So cohabited won't be able to rely upon that only spouses and civil partners will have that. But even with the spouse or civil partner, how do they ensure that if their spouse try sis order property? Uh even if it's subject to a mortgage, how do they prevent the other person from doing that if they've got that statutory right of occupation. So let me put this into context. Continue with the example of just mentioned where say your for wife, she's contemplating divorce. The houses in say husbands name. Wife likes his contemplating divorce. And the wife is saying to you that look, I've got this right to occupy, which I understand because by virtue of marriage. So at least I can stay in the house whilst we go through divorce proceedings and hopefully thereafter will resolve what happens to property. But hawaii is can my husband sell this house without my permission. So if he, for example, wants to avoid and be difficult with me if he wants to try and dispose of this house without even telling me, given its in his name. Can you do that? And what can I do to prevent him from doing so before we resolve the financial aspects of the relationship right down. And this is where what you need to do is you need to ascertain as to how the property is held in terms of whether it's registered or unregistered. So you can do an index map surgeon that will tell you as to how the property is held. And even though there are still some unregistered properties, not many in England and Wales but those where they are then you can register what's called a class F. Land charge completing form called A K. Two and sending it to land registry. And that will then basically put a charge on that property so that when bona fide purchasers and then looking to purchase that property for example a husband is looking to sell without say informing his wife. They should be doing a search. They should be doing the pre contract or searches and inquiries and they will see that this class F land charge is registered there. And therefore in turn which means that they are less likely to purchase that property unless the husband and until the husband can confirm that he will be able to grant vacant possession upon completion. Which he may not be able to do if of course that the wife an example of just giving you registered her right to occupy. So that will give her that protection if of course the land is registered. Which is most likely in most cases then this is where she can register what's called a notice on the register that's using a form called HR Wonder Homes right? And this could be registered at the land registry. And once this is registered, this will then be a charge upon the property and no sailor mortgage made and take place lest of spouse with the right consents or consents or concept discharged by the court. So again, any bonafide purchaser will do their search and they will see that this right is registered and they will not be ordinarily be looking to purchase in most cases unless the respondent unless their husband is able to provide them with that vacant possession. As I say, okay. Not that the registration of this right have it doesn't give any protection against an existing mortgage which does take priority in that regard. So you can't use this right to prevent possession proceedings, for example, but you can pay the mortgage and therefore remaining property. So very, very important when you are advising couples where your client is the one who does not have the house in their name, but they are married or civil partner and they have this section 30 right. It's very important, very early on in the process when they come to see to have this discussion with them and then to register the right whether it's a K. Two or whether it's A H. R. One. And as I mentioned, if it is the case that they are, the house is held jointly. And this is where you need to have that discussion with them about whether or not they wish for the property to remain as joint tenants as tenants in common. And if it's tenancy in common, then if they wish it to be as tenants in common and they can sever the joint tenancy, which will take you through shortly Now when you are advising cohabit ease, then they will not have the benefit therefore, of the various rights relating to the rights of occupation that I've just mentioned. A section 30 right. And also it may be that when you're advising cohabit ease that the person that you're advising may not have the house in their name, the other type of issue you may have when you're advising cohabiting or former cohabit eases where the house maybe in joint names, but then there's a dispute as to whether the house should be sold or not. One person may seek to be sold and the other may not. And this is where you can therefore have those issues in place as well And therefore what you need to do when you're dealing with this area is to see in whose name the property is under and to do that, you need to check the title deeds. So if the legal or beneficial interest of each other parties or opportunities and that would be conclusive the absence of fraud and mistake. But what if the house is the name of only one person with the other have rights? Well, this is as we've just said, there is the right to occupy the section 30 right? But if they're cohabiting then this is where you need to see whether or not they can acquire a beneficial interest through one of the various methods through trust process. Now this is where we're going to take you firstly through the position with result interests and so far as a result and trusts are concerned historically, we wouldn't rely upon these. These are not used as often now in a domestic context, but this had the effect that if say you got man, a lady who decide to moving together, they wish to purchase the property jointly. But let's say the credit rating of the lady is not as good as the man's. So that to be on the society is not prepared to release the mortgage funds to her, but they are prepared to release the entire funds to the man. For example, in those circumstances, then in those circumstances if they do purchase the property but it's putting his soul name. If she nonetheless has some money available which she uses then to fund towards the cost of the purchase. For example, she pays a deposit That that could result in her quiet resulting trust. So let's say the person is property for say £300,000 and she pays the 10% deposit, sort of £30,000, then if even though the house is put in a man's name By making that contribution, if they later fallout, she may argue that by him personal property and putting in just his name, it was implied under circumstances that by her making that £30,000 contribution, it would result in him holding the money, the house on trust for himself and for her equivalent to her contribution. So effectively then equivalent to that percentage that she's paid. And this contribution could take the form of payment towards all part of the purchase price or the deposit payment towards illegal cost would not be sufficient. So effectively she would be arguing that's inferred from the circumstances that by making that contribution, she should then get a share of the equity in accordance with her contribution. So that's the idea of resulting trust. Like say historically, we used to rely upon this more so for domestic situations, but more modern way of dealing with these uh places involving contributions are now in the domestic context dealt with by using either concept of constructive trust and or the concepts surrounding prepared to Istanbul which we'll look at. So this is where what we need to ask ourselves in terms of the concept of constructive trust, is this sometimes when people move in together, they may have an expressed common agreement arrangement understanding. So when they move in together. So the house has been put in a man's name. Again. They have a discussion the two of them and they agree that even though the house is being put in his name, it's understood or agreed between them. That the lady would have just as much rights towards the property as he doesn't. Sometimes they may sit down and have an agreement and arrangement and understanding perhaps formally, informally, it may be perfectly record and if there is sufficient evidence of this, then the court can then look at that to see what the agreement was. And secondly the person must have relied upon that agreement to the detriment that must have been spent money on the property, paint water towards food. Uh The cost of the cost of the running the household in those circumstances to then be able to demonstrate that there was this trust that was created so that a non owner then acquires a beneficial interest in the property. But what's more common rather than an express constructive trust, what's more common is that in for the constructive trusts would speak, which is more so more common where there is this common understanding between them, this common intention that the property would be owned jointly and in the not only party must have enacted to their detriment. So this is more common and the type of situation would be where say you got man a lady in the example of given you they want to move in together, they want to purchase their property. But say the credit rating of the lady like say it's not as viable as what it is for the man. So that in that situation to be honest society and not prepared to release the money is to a lady but just to the man in that situation. So what then happens in that case is that the man basically has a discussion with the lady and says look this property that I'm gonna purchase, it's gonna be for both of us. You're my common law wife and your common law husband, what's mine is yours. And even though the house is going to be my name, it doesn't matter because we're in a relationship. So they have that kind of discussion. He really honestly believes that she believes that and therefore their common intention that the property would be on joint even though it's not been purchased jointly. And as a consequence of that common intention, the lady then acts upon that she acts to her detriment. She makes financial contributions and money and money is worth towards that property. She pays towards say the extension to property towards say renovation costs, rewiring, double glazing central heating, love conversion, she makes substantial payments towards that property. And then the reason for doing that is because she believed the property was as much hers as it was demands and that's where if they later were to fall out even though they were cohabiting, she would then be arguing that she should be entitled to a share of the property. On the basis of this concept of constructive trust. So that's the thinking behind that. And how one would then argue the provisions in that regard. That's one provision that you need to be familiar with. Now the other is in relation to the issue of severance of the joint tenancy. And as I mentioned, this is particularly relevant not just for spouses or super partners, but also for unmarried couples cohabit ease of former cohabit ease. So, as I mentioned, if you are therefore instructed by, say, husband and wife, they come to see you and they are contemplating a divorce or they wish to maybe separate. One of the things you need to be discussing with them is whether or not they wish to sever the joint tenancy. So, as I mentioned, if they have a house together is how jointly law and equity divided, survivorship applies once the first person dies and they cannot change that through a will or in testes. E but if now that they're divorcing or separating if they wish to change that sort of wife, for example, wishes to leave her shoulder property to her parents, for example, that it's very important for you to advise her about severing the joint tenancy and it's easy enough to do it just simply write to the other person whereby you are writing to the other person where she then signs the notice or severance which then would be received by him giving him Notice of her wish for the joint property to be severed. And then once that's been received by him then he's been severed. And what you should be doing is lodging with the land registry a form called SCV one uh and that then confirms to the land registry that the property has been severed and they will then amend the records their end so as to then put a restriction on their on their end so as to ensure that the beneficial interest is now held as tenants in common. Okay So that's where that applies in the case of say a married person, civil partners or cohabit ease. But the difficulty sometimes is what if a couple do suffer As in this case of stacking down and when they do sever but then they have a dispute as to what share each of them should actually be getting. I should it be 5050 otherwise. And that's what this case of stacking down and was about is called your decision. So this case involved an unmarried couple, they bought a house together which was put in joint names. They didn't have a declaration trust and therefore didn't declare what she each of them would get in the event of sale or severance but it was purchased jointly. The lady had spent a lot of money from the sale of her first property which she then used to put into this property. And over the 20 years or so they were together, they had four Children together and she paid a lot more into this property over those years that than he did. And this is where like say this was purchased as joint in joint names and registered as such and as fully transferred deed in 1993 1 day like they bought this house. There was no express declaration of trust at that stage. Okay. So the parties have not discussed their respective shares at the time of purchase. It didn't come, it did not, it did contain how the declaration that the survivor can give a value to recede and therefore it was confirming that the property was purchased as a joint tenancy. But what they didn't do is really discuss their respective shares. But the fact that it was purchased jointly and there was that declaration there there is therefore that rebuttable presumption of 50 50 Anyway, some years later, some 20 odd years later, they fell out and like say it was the lady who had been putting a lot more into this property than the man had, but some 20 odd years later they fell out and a lady severed her joint 10ancy. Remember the purpose of that is so as to escape from the right five ships so that she could leave her share to somebody else other than her partner as in this case, given that they had separated. And the question that arose for the court, then, was that if she did sever the joint tenancy, does it create a tenancy in common in equal shares on equal shares? That was the issue. And this is where the man argued that it should equate to declaring an equal shares because there was that rebuttable presumption of division in 5050. And the trial judge concluded that this was a case, but that led to the appeal. And in fact, the lady sought to argue otherwise. Her case was that over the many years that they had been together, she had been putting a lot more into this property than he had. And therefore, she said that it was unfair given regard to the whole course of dealings between the parties, that the shares should be equal. She said that other than half a mortgage advance and the rest of the policies which were paid for by by him, uh the rest was paid for entirely by her own funds. And therefore she argued which the court appeal and has laws then accepted that uh where if it was the case here, that She didn't pay as much as what she did. And therefore, she assumed as he did that it was going to be held on the base of 5050 than really, that's what the position would have been. But here because of her intention, because of the way she spent the money, because of what she thought it meant by spending more. She was going to get more potentially the court was prepared on the facts to be able to vary the rebuttable presumption of 5050 in her favor, and therefore they were prepared to give her 65% of the beneficial proceeds and they gave him 35%. And like I said, there was the appeal to house laws and they confirmed the court of appeal decision. So what this case highlights is of course, when couples do purchase properties jointly, it's very, very important to advise them about how they wish to hold that property and therefore to have that discussion with them as to whether or not they wish to have the proceeds divided equally upon sale or severance or otherwise if they wish to have the proceeds divided unequally, that is very important to have that discussion with them about personal property as tenants in common in unequal shares and then to declare what that share is to be. And then to make it even more definitive to have a separate declaration of trust. So that it's clear in that declaration as to what share each of them will have in the event of sufferance or sale In those circumstances. And again, this case highlights that although you can apply to above the presumption of 5050 is not easy. And obviously this case, you can see it had to go all the way to the House of Lords as it was then to be able to see that declaration. Now, there was a similar decision then reached in the case of Johnson Colonel in 2011 by the Supreme Court. And this is one where the court emphasized in this case. Uh the Lord work walker and Lady Hale said that the principle recognizing stack and dad and is that where people pay such family home in their joint names? The presumption is that they intend to own it jointly inequity. Also, the starting point is different in cases where people purchase the name of one party, of course that intention is not there. So in john's and Colonel, The court did say that of course this presumption of 5050 can be rebutted by evidence that it was not ceased to be the common intention of the parties to hold the property jointly. And this may be more readily be shown on the parties did not share their respective financial resources. Okay, so here what happened in john's and corner is the couple bought a property which was purchased jointly. Again, uh they didn't have a declaration of trust and contain the restriction and therefore once again it was held as beneficial joint tenants. They lived together for some eight years had two Children. They were both contributed towards the property and then the man decided to leave his partner and the Children and he effectively left and he relinquished his interest in the property. He Paid nothing towards the property anymore. He gave no money towards the Children or his ex partner. And she naturally assumed that she wouldn't see him again. She therefore continued to look after Children in the household on her own. He then returned some 12 years later, demanding after property on the basis that he said that this house is held jointly and therefore the property was severed and he sought half the property. This is where the court, therefore applying the principles in stock. And dad, We're prepared to say that this presumption is rebuttable. Presumption of 50 50 50 can of course be rebutted if there is this evidence later on to show that the parties did not intend to share their financial resources and here, by his evidence, by his conduct, by the fact he relinquished his interest by moving out and not wanting to return for such a significant period of time. That was sufficient evidence. The court found To determine that the presumption of 5050 should be rebutted, and therefore on that basis, he ended up getting nearly 10% of the proceeds and the lady got the other 90% of the proceeds. So, again, you can see that these cases can do illustrate that rebuttal in appropriate cases. Now, the other concept that sometimes people may use when they are advising cohabited is the concept of proprietary. Stop. When this is a concept which has continued to be used over the years very successfully. And one of the earlier cases where this concept was referred to and used is this case of Math and Math, Are you a few years ago and in 1990? And what this case highlighted was that proprietor stop was established on the facts of the case. As in this case, we're essentially initially when we used to rely upon estoppel it was on the basis that when he had a couple who moved in together so that has maybe one person's name and they deliberately mislead the other person into believing that the property was also, there's which leads to the other person going and spending money on the property and then on a later discovering that the other person is actually refusing to give them any shield of property. So they would then rely upon proprietary stop or to effectively stop and therefore to prevent the other person from exerting their strict legal rights and therefore allowing them to acquire an interest in the property, whether it's a beneficial interest, whether it's a license to occupy, whether it's even the actual legal estate in those circumstances, and that's what this case of. And it was about. We're here to a stop or you may get, for example, license to occupy, you may get a beneficial interest that share the proceeds. You may even get the legal estate. So it depends on what the intentions were in the circumstances. There's been a number of cases on a stop over the years and it is becoming much more utilized in cases where you've got the complexity of the States and more complex family relationships. So one very good example of that was the case of Gillet and hold a few years ago, which involved a business relationship effectively. So it was one whereby a farmer had a young boy who was 13, used to come around and do some errands for him and used to give him some money and then he said to the young boy when you leave school, if you want a job, he can come and work for me. So when this lad finished school at 16 with his parents permission, he came and started working for the farmer. And then after a while he was there all day every day doing a lot of work on there and throughout this period the farmer kept reassuring him saying, look, you know, if you Throw yourself into this work, if you help me and do this one day this will be yours. So, what this boy, as he grew up did is he carried on working for the farmer, but with very little money because his, he understood that in fact he was going to be giving, given a substantial part of the farming business in due course. And this arrangement went on for some 43 years, obviously a substantial period of time later they fell out and the farmer refused to give him anything and that's where this man then decided to bring an action through a stop all on the basis that he was misled into believing that he would be getting this. So he brought an action and he was successful. So that because of the detriment he suffered, he was able to then bring uh action in that regard and he was successful and he was able to get the freehold of the farm house as well as £100,000 compensation for being excluded from the rest of the farming business. So you can see the thinking behind this and therefore why this is and may well be necessary in some of these cases. Another case was the case of hide and Stanley. This 2003 case, we're here similar type of situation where Mr Freeman cohabited with MS hired for about 10 years, they pooled their resources together to live on a farm and on his death, Miss hired, claimed half the house, which was in Mr Freeman's name and she claimed a constructive trust. Again, just like some of the previous case has looked at, she was successful and based again on the reassurances that had been given when Mr Freeman had said to her that Miss Hide with her name on the mortgage, she would have a right to the farm. So her detriment was the risk of joint liability. So again, you consider thinking behind that. There's been a number of cases where people have been able to rely upon estoppel insofar as, as a consequence of the farming cases, where adult Children have brought successful claims against their parents and the case of Davis and another one. Davis was an example of that in 2016 were here, the daughter brought her successful estoppel claim against her parents, uh whereby she said that reassurances have been given to her that she would be getting the farm farming business and she therefore relied upon that through a stop or So, there's been a number of cases there that people have been using. And a more recent example of that was the case of Heber field and have a field in 2018, which involved a daughter in that case, where she successfully then brought an action against her parents in relation to once again to hold the farm. So she argued that she should be getting the whole of the farm or a lesser share of it, maybe half of it through the representations that were made to her, and she brought her action under estoppel alternative. Her father had passed away. She brought an action under the inheritance provisions for found Independence Act of 1975 on the basis that she was an adult child of the deceased, and she was bringing a claim on that basis. So, again, you can see that stop all has and continues to be used in these situations as well by adult Children. And the court did say in the field court, the court did say that they were satisfied that the claims work on the farm over those years could be regarded as a relevant detriment. And that included the type of detriment that she relied upon. The court said included her doing long hours for low pay. She took very few holidays and other family members also, of course work very long hours, but they were going on their holidays, they were not there as long as what she was. And a person employed an arm's length transaction would simply not have put the hours in the way she did. Had she not thought that she would be benefiting in that regard. And it never really occurred to her to go out there. This was a large part of the reassurances that she was given and therefore she relied upon those and therefore on that basis. She was successful in getting the beneficial interest. Again, you can see the thinking behind that. But what this later case of 2018 demonstrates this case of Dobson and Griffey, is that if you are going to be pursuing a claim for estoppel, then the burden is of course, on the claimant to we have to show that it's on a standard, the standard proof is on the balance of probabilities and the court will expect want to do what's called a survey of the whole course of dealing. So you need to be looking at their actions throughout to see what their intention was and why they spent that money and made those contributions that they did. And there have been other cases. There was a case of guests and guests in 2019, for example. Yet again, this was another case where it was an adult son in this case brought an action. So the son who was aged 52, he brought an action against his parents in relation to a family farm in the family business And the detriment. The quarter, paragraph 266 was summed up really neatly in what the sunset giving evidence. So this is what he said. And you can see, I quote what I'm saying is that I gave you the best 30 years of my life. If I had gone to work for somebody else had I have £30,000 a year plus it has to live in cancel tax played plus a car. If he had somebody else doing what I did, he would of course your dance like more than you paid me. And you have to realize that. So that really sums up, I would suggest what the sun's argument was in terms of detriments based on the reassurances that he had been given. This was a detriment and therefore once again he was successful in getting a substantial part of the beneficial interest of the farming business and a more recent case of that was just a few months ago, the case of Williams and Williams were here, it was once again a son who sought a claim against the various farms that were purchased and put into partnership on this particular case. However, the Sun was not successful. There was insufficient evidence that accord felt to show that the intention was there. So again, people are not always going to be successful when they pursue actions on this basis. Now, if you are going to be seeking actions under in relation to cohabit ease of former cohabit ease whether, for example, you're seeking a beneficial interest in the cases where the house is held by one person, such as the construction trust, the provider, stop what type of cases or if the properties are jointly and one person wants to say, the household and the other doesn't. Uh and therefore you're looking to uh seek an order for sale or your disputing over what share of the beneficial interest they should have in terms of the seven. When the property seven, then when you're pursuing these actions, you're then going to be bringing these actions under this action to Lotte that stands for the trust of land and appointment of trustees at 1996. So, this is the action that you'll be bringing these actions under and you'll be applying under Section 14 of the act, which gives any person who is a trustee or has an interesting property right to apply for an order under this section. So the court can make an order really relating to exercise by the trustee of their functions. And the court can also declare the nature and extent to a person's interest. The court can, for example, or the sale, they can order that person is entitled to a certain share the beneficial proceeds, for example. So cases like stacking down and remember there the lady got 65% of the proceeds jones and Colonel the man got, the lady got 90%. So they can declare the respective beneficial interest if needs be. And the criteria that the court will take into account is that which is set out within section 15 of the act. So for example, if say I was acting for the man and I'm seeking an order for sale. And the ladies opposing Then the court will take into account in the section 15. And what was the intention of creating sort of trust. So when they moved in together, what was the intention was obviously at that stage, it has for the two of them, which is no longer a reason. So that would suggest say what's the purpose which the property subject to trust is now held by looking at the current reason. Current reason is it's no longer home for the two of them. So that reason would again not be a strong reason to avoid sale. What about any Children have any Children who occupy or may be expected to occupy the land? So that may suggest that the house is not sold and in the interests of any secured creditors. If we provide them, for example, a bankrupt. And you're looking at maybe saying the house to pay creditors, for example, that may suggest sale. So all of these factors under section 15 are therefore weighed up in order to enable the court them to decide as to whether or not to. For example, realize that application that has been made. Okay? So that's where that fits in. Okay, So you can see I've spent a fair bit of time today going through some of the remainder of some of the aspects of the Domestic abuse Act and then we've spent some time going through the position with looking at the home in particular, the family home and occupation rights, and also the positions surrounding advising particularly cohabit ease and how we need to ensure that their rights are ensured when there is that relationship breakdown. Thank you very much indeed for listening. I hope that's been a useful session for you and I look forward to speaking to you next time. Thank you very much. Bye for now.
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