PROPERTY AND FINANCIAL PROVISIONS

RIGHTS IN PROPERTY CREATED AND AFFECTED BY THE RELATIONSHIP OF THE SPOUSES Previously a woman upon marriage surrendered her property to her husband as she was viewed as his subject, at the end of the marriage she left with no property. The general rule that a woman would retain her property upon marriage was developed. It thus became a cardinal rule of English law that marriage had no impact on the property rights of the spouses. In contrast to the separation of property during a marriage, the courts have the powers to reallocate property upon divorce or dissolution of marriage. Where the relationship ends as a result of death, the laws of testate and intestate succession will apply.

FINANCIAL PROVISIONS WHILST MARRIED Under common law the position is that each party maintains their personal property, unless an agreement to the contrary is ascertained on the facts of the case. When the couple is living in harmony who owns what may not be a relevant consideration. Problems will normally arise when there is conflict or any claim from a third party e.g. creditor or trustee in bankruptcy. Problems may also arise once a party dies to determine what constitutes a part of his or her estate. The rules relating to ownership of matrimonial assets and the powers granted to the court to make orders to transfer or make provisions of the parties will only apply to married couples.

REAL PROPERTY Real property A person that registers their name at the land and Deeds registry is deemed to be the legal owner of the property. There is a difference between the legal owner and the beneficial owner. The legal owner will have the right to sell the property, mortgage it etc. The beneficial owner on the other hand will have the right to the proceeds. Any transfer of land must be evidenced in writing. Both parties are registered as legal owners on the certificate of title Where both parties have their names appearing on the certificate of title they will both be the legal owners. They must specify if they hold jointly as joint tenants or tenants in common. Where they hold as joint tenants, they are both entitled to the whole of the property. The right of survivorship will operate, so that upon death of one party the other will be entitled to the whole property. Where they hold as tenants in common they are entitled to a share of the property that can be severed. Each party can mortgage or sell off their share. Upon death of one of the party, their share will constitute a part of their estate.

Real property Where only one party is registered as the legal owner   As state in this case the sole owner has got the right to lease, mortgage or even sale. The other party will only be entitled to the proceeds if they are the beneficial owner or if a contract is found that illustrates to the contrary.

Trusts Trusts Under property law any transfer of land must be registered in writing. However where a trust can be ascertained from the facts of the case, the other party may be entitled to an equitable right, which unless evidenced and registered against the title may be hard to prove (must be inserted in the memorials).  

Resulting trusts Where a monetary contribution towards the purchase to the property is made, equity presumes that the person is entitled to a beneficial interest in proportion to their contribution in the absence of evidence to the contrary. If it is shown on the facts that the contribution was a loan or a gift the presumption will not apply. This is so where the husband provides money for the purchase of property of the wife or child, the presumption is that the same was a gift.   Springette v Defoe In this case where Ms Springette and Mr Defoe began to cohabit, he moved in to Ms S’s council flat and paid half of the rent. Three years later they moved into another council property and became joint tenants. They were offered the right to purchase the house at a discount, which Ms S had earned because she had been a council tenant for more than 11 years. She could not affort to take advantage of teh discount and by the house on her own, so she arranged to buy it jointly with Mr D. The house was valied at 24,500 pounds but the discount reduced the price to 14,445. Three years later the relationship broke down and Mr D left the family home. Proceedings were started to determine each of their entitlements. They were registered as joint owners but the title did not state their shares. The court held that their shares were in accordance with their contributions. Ms S contributed the reduction in price (discount) as well as a half of the mortgage loan and also a cash contribution at the time of the purchase. Her share in the property came to 75.2 percent.

Constructive trusts How about in cases where no financial contribution was made to the family home at the time of purchase but other contributions say in buying property or in making renovations. Here the principal of constructive trusts will apply and the courts will look to any implied or express agreements made or come to by the parties illustrating that the other is to have a share in the beneficial interest.   In the case of Lloyds Bank plc v Rosset where the husband purchased property in his name and the wife did not provide any funds at the time of the purchase but nonetheless had overseen the building, bought material for the renovation. She did this for a period of four months and took care of the children whilst her husband was away. The husband obtained a bank overdraft and mortgaged the property. The wife claimed that she was entitled to a beneficial interest. On the question of whether she was entitle to a beneficial interest, the court stated that there has to be shown Prior to the purchase there must be some sort of agreement formal or informal indicating that the other party is entitled to a beneficial interest The other party must have acted to their detriment in reliance of such an agreement. the only proof recognised of such an agreement and detriment will only be in the form of financial contributions towards the of the property.  In the alternative the following will establish a constructive trust where there is no evidence to support a finding of an agreement or arrangement to share, here the court will look at the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. The court found no such agreement and the court failed to find any such conduct illustrating a constructive trust. Mrs Rossett’s claim failed. This decision limits the possibility of claims of constructive trusts as normally women will make non financial contributions. People whilst married rarely discuss beneficial interests and even more will not understand what they are.

Proprietary estoppels Express evidence of agreements and detrimental reliance Where one person makes an excuse about his motivation for purchasing the family home in his own name and thus leading his partner to believe that he would have liked her to have a share in the property had the circumstances been slightly different, the court has held that such a party will be entitled to a share in the property. See Eves v Eves and Grant v Edwards.  Where one party promises the other a share in the house and the other acts in reliance of such a promise to their detriment, the other party will be stopped from going back on their promise.  

Contracts The courts are unlikely to uphold a contract between spouses on grounds that there is no intention to create a legal agreement.  

RIGHT TO OCCUPATION Each party has the right to occupy and use the furniture in the matrimonial home. Where one spouse is being abused the court can oust the other party from the house see MCA as well as the GBV act.

Personal property Each party is personally entitled to property bought for personal use. Property bought for the use of the home will belong to both parties. If there is a joint account, the account as well as the property bought for joint purposes will belong to both parties. See Paul v Constance (1977) and Re Bishop (deceased) 1965. Gifts: an exception will be gifts, irrespective if personal funds were given the property will belong to the donee. When it comes to personal property the courts are inclined to uphold an oral trust created. In Paul v Constance, the man received 950 pounds as damages for personal injuries which he deposited in a bank account in his sole name. He told the lady that she could draw on the account with his signed agreement and that the money was as much hers as it was his. This was sufficient to create an express trust.  

Right to maintenance during the marriage  Parties to a marriage have a duty to maintain each other as well as the children of the family (see the MCA for expansive definition of the children of the family). The spouse having a stronger financial position is obliged to provide for the other with a weaker financial position. Where one party fails to maintain the other party and the children, the party needing maintenance can sue for wilful neglect to maintain under s58 of the MCA 2007. Where it is the wife applying under s58, she must show that: the husband has wilfully neglected to provide reasonable maintenance for the applicant or To provide or to make a proper contribution towards, reasonable maintenance for any child of the family If it is the husband applying he must show that The wife has wilfully neglected to provide or to make a proper contribution towards, reasonable maintenance For the applicant in a case where by reason of impairment of the applicants earning capacity through age, illness or disability of mind or body, having regard to any resources of the applicant and the respondent respectively which are or should properly be made, available for the purpose, it is reasonable in all the circumstances to expect the respondent so to provide or contribute or For any child of the family to whom this section applies

Maintenance: Marital children Maintenance provisions for children Where either one of the parties fails to maintain a child the other can apply for maintenance Upon divorce, judicial separation or nullity under the MCA as well as the affiliation and maintenance provisions act see s9 in relation to a marital child. Whilst married under the affiliation and maintenance provisions act s8 (either party to a marriage can apply for a maintenance order on the ground that the other party to the marriage has failed to provide or to make a proper contribution towards, reasonable maintenance of a marital child)

Maintenance: non marital child As a non married father does not automatically acquire parental responsibility, where the parties are not married the single mother (or other person on behalf of the child see s5) must first apply for an affiliation order. Provision for the same is found under s3 of the Affiliation and maintenance of children act. The application must be made within 12 months of the birth of the non marital child or 12 months since the last date that the father paid for the child’s maintenance or 12 months after the return to Zambia of the putative father of the non marital child, upon proof that he ceased to reside in Zambia within the period of 12 months after the birth of the non-marital child. The application is by way of complaint after which the putative will be summoned to show proof why he should not be ordered to pay maintenance. The affiliation order may be made at the same time as the maintenance order. Under s4 a single woman to a void marriage may apply for an affiliation order upon proof that the marriage would have been valid had both parties been of legal age to consent to marriage. Note that it is required that any evidence of the mother must be corroborated. The affiliation order then links the putative father to the child. Upon making such an order the court may make a maintenance order under s7 of the affiliation and maintenance provisions act.

Types of Maintenance orders see s10 Periodic payments: the order may specify the duration of such payments Lump sum orders: this may however be paid in instalments and the court may order that an interest accrues. Security payments: the court may request the party to pay maintenance to give security for such payments to a certain value.

Factors to consider see s11 The welfare of the child including any preliminary expenses The income, earning capacity, property and other financial resources which each interested person has or is likely to have, in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court, be reasonable to expect a person to take steps to acquire The financial needs, obligations and responsibilities which each interested person has or is likely to have in the foreseeable future; The standard of living enjoyed by the family before the breakdown of the marriage, in the case of persons who are divorcing. The age of the child and of each interested person Any physical or mental disability of the child The contributions which each person has made, or is likely in the foreseeable future to make, to the welfare of the child, including any contributions made or to be made by looking after the home or caring for the child; The financial needs of the child The income, earning capacity, property and other financial resources if any of the child and The manner in which the child was being and in which its parents expected it to be or trained.

Duration see s12 The maintenance order shall not be made in favour of a child who has attained the age of 18. If periodic payments are made they will seize upon the child turning 18 or the death of the child. This is so unless the court considers that the child will be in school or college or that there other special circumstances which justify the making of an order. The court may vary or discharge the maintenance order see s13. Only the child’s mother, father or custodian can be entitled to any money for the child’s maintenance see s14.