chapter  7
11 Pages

PROPERTY RIGHTS FOR HOME-SHARERS: EQUITY VERSUS A LEGISLATIVE FRAMEWORK?

Simone Wong At the breakdown of a marriage or a relationship between cohabitants, one significant issue that often arises relates to the distribution of the parties' assets and, more particularly, their respective rights over the family home. Whilst the courts are given powers to adjust the property rights of spouses at the breakdown of marriage.l the powers do not extend to cohabitants or other parties in a domestic relationship. In the absence of legal co-ownership in the property, these parties will have to rely on contract law, property law and trusts principles to establish an equitable interest in the said property-The use of trusts principles, especially the common intention constructive trust, has been subject to much criticism as an effective method of resolving family property disputes. This is partly owing to the narrow interpretation that subsequent courts have given to the criteria laid down by Lord Bridge in Lloyds Bank v Rosset3 for establishing the existence of the requisite I common intention' so as to ground a proprietary claim.f One of the key criticisms of Rosset is its focus on direct financial contributions, thereby exposing the test to gender bias. The approach is formulated and interpreted by the courts in a manner that tends to mask the effects of sexual division of labour in relationships and, consequently, to discriminate against female claimants.f The test ignores how, in a domestic relationship, the woman generally remains the partner who is primarily responsible for the care of the family and the home. This will, in tum, affect both the ability of most women to participate in the labour market and their economic resources.s Consequently, an approach that focuses on direct financial contributions and downplays the significance of indirect non-financial contributions places women at a disadvantage.