Should the Law Continue to Threat Married Couples Differently from Essay

Should the Law Continue to Threat Married Couples Differently from Unmarried Cohabitants in Property Disputes - Essay Example Instead, post-separation property disputes between unmarried cohabitants are resolved by reference to the law of trusts (George, 2008). The decision of the House of Lords in Stack v Dowden addressed one issue arising between unmarried cohabitants in a post-separation property dispute: the correct division of the beneficial interests in the absence of an express declaration of trust in a title deed where both cohabitants hold the legal title (Stack v Dowden, 2007). However, Stack v Dowden does raise some issues about the appropriate principles that should be applied to property disputes in the family contexts regardless of whether the family is comprised of a conventional married couple or not, however, those issues remain unresolved (Gardiner & Davidson, 2011). The primary issue is determining the interpretation of imputing or inferring the parties’ common intention, which remains the primary method of resolving property disputes between unmarried cohabitants (Gardiner & David son, 2011). This paper considers whether or not it is realistic, given the social realities of the modern family to treat post-separation property disputes between married couples and between unmarried cohabitants differently. This paper is divided into two parts. ... on Property Division Between Unmarried Cohabitants There is no statutory authority for the courts to determine how to settle property or property rights relative to unmarried cohabitees who having cohabited for a significant period of time, have come to the decision to separate. Unmarried cohabitees therefore have limited options. They may attempt to have their property disputes resolved by engaging in civil suits if a contract of some sort exists (Deech, 2010). Alternatively, unmarried cohabitants may have the issues resolved by reference to the principles of equity and trusts (Singer, 2009). Under the current state of the applicable principles of equity and trust relative to unmarried cohabitants, the common intention of the parties is the primary method by which the courts attempt to imply a constructive trust in a fair division of the property (Dyson, 2008). The common intention of the parties was first referred to in the case of Lloyds Bank Plc v Rosset (1991). Essentially, the courts will seek to determine whether or not there was a common intention on the part of the parties to divide the property a specific way despite the descriptions rendered by the legal title and the declaration of beneficial interests. The result is the imposition of a constructive trust. Thus a constructive trust imposed by evidence of a common intention is intended to avoid unconscionable consequences in circumstances where the title deeds do not reflect the realities of the acquisition and holding of the property (Pawlowski, 2006). Unfairness arises because, the principle of common intention seeks to determine matters of trust involved in relationships and has evolved as decidedly unclear and unpredictable, making it difficult for unmarried cohabitants to know and assert their property