Please enable JavaScript.

Coggle requires JavaScript to display documents.

Family Law - Coggle Diagram

- - - - Family home - where married couple ordinarily reside, or where 1 spouse resided prior to leaving
    - - Consent - can't sell family home without consent
    - - sets out what a conveyance is (mortgage, transfer, lease, disposition of property (unless by will or DMC)
  - - - if unregistered provided prior to delivery of deed
      - BOI v Hanrahan husband sole owner of unregistered land, asks bank for additional charge on property, told need wifes consent, he leaves deed in bank overnight - court held bank only custodians of deed overnight - consent prior
      - BOI v Smyth wife gave consent didn't realise meant bank could repossess home - bank obligation to make sure wife understood what she was consenting too - bank on constructive notice - should have made enquiries about wifes understanding
      - if registered consent provided prior to entry on relevent folio
      - Somer v Weir wife left family home after breakdown of marriage, husband said no longer family home, plaintiffs solicitor never sought Separation Agreement or any proof, statutory declaration said wife didn't use house as family home - held - not true- consent not considered valid - on constructive notice - if sought agreement would have seen wife hadn't given up rights- reasonable person would ask for the agreement
    - - Reynolds purchaser can rely on them, if untrue purchase property in good faith
      - De Londres - Somers read with Reynolds- purchasers entitled torely on statutory declarations, but when something sugggessts unreliability enquireis should be made
    - - SOB v MOB husband and wife got a church annulment - husband remarries - wife refuses to consent - unreasonably witheld - not based on objtective considerations
      - Hamilton
    - - McLoughlin v O'Loughlin plaintiff had been placed on constructive notice - look at what enquires ought to reasonably have been made - plaintiffs solicitor made an enquiry but not told about what was relavent should have expressly asked
- - - - Indirect
        
        non-owning spouse alleviates some of the burden from the owning spouse
        
        C v C can include both parties contributing to joint bank account
        
        tricky thing is how to value indirect contributions
        
        Liberal
        
        C v C futil to infer agreement as likely never had conversation if happy - trustee if wife made contributions to mortgage or purchase of house
        
        FG v PG husband owns house, emigrate, business fails, wife gets job to keep everything running - contributes to joint bank account but not to mortgage, gained equitable share as releived husband of expenses otherwise would have to pay
        
        Gissing husband and wife split, wife paid for furniture and lawn, dissent - Lord Reed- not necessary to have a common intention
        
        narrow
        
        Gissing v Gissing majority said need common intention
        
        MacFarlane v MacFarlane property in husbands name, wife paid salary house bills and did unpaid work for husbands company, -court held - must have an express agreement to create interest in wifes name or agreement of common intention
        
        Lloyd wife constructing things on property- if there is an express agreemnt wife has to act to her detriment or alter position in light of agreement
        
        MG need to show evidence to indicate payments made in pursuit of common intention
        
        Irish approach
        
        MCC v MCC property in husbands name, he pays full mortgage, couple sold previous hous, wife entitled to 1800, didn't seek any of it but agreed that it go towards new house - SC held- no agreement necessary - depends if wifes contribution big enough, she gets an equitable interest proportioante to her contribution - made it clear both direct and indirect give rise to equity - in this contribution not big enough
      - direct
        
        e.g. mortgage repayments, contribution to deposit or purchase price
        
        no legal title but held on trust for them
        
        C v C based ownership percentage on contribution to property
        
        GK if clear intention to hold property equally will be accepted by court
- - - - De Londras list factors - terms of sepration agreement, current or future income earning capacity, financial needs, current standard living, age of each spouse, lenght of marriage, disabilities, contributions to the welfare of home - not just financial, rights of relavent 3rd parties
      - AR v ST CA considered what is proper provision - upheld HC decision of Husband paying wife lump sum 3.8 million and ongoing mainteance - 3 properties transfered to wife