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'Family property' and the process of 'familialisation' of property law [2012] CFLQ 284

Sep 29, 2018, 18:27 PM
Slug : AndrewHayward2012CFLQ284
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Date : Sep 21, 2012, 04:19 AM
Article ID : 100359

‘Familialisation’ is a judicial process, identified by John Dewar, whereby relationship neutral property law principles affecting ownership of the family home are reinterpreted and recalibrated to accommodate the specific needs of family members. This article demonstrates that, owing to the absence of legislation conferring rights on cohabitants and home-sharers in England and Wales, recent decisions such as Stack v Dowden and Jones v Kernott reveal the judiciary’s continued engagement with a process of familialisation. However, taking account of judicial developments in the ‘matrimonial property period’ (namely, case-law decided between 1948–1970), and relying on Dewar’s original thesis, this article develops the thesis further by arguing that there is now evidence of an intensification of familialisation taking place from what will be termed ‘fragmented’ familialisation to a more comprehensive and far-reaching form of ‘enhanced’ familialisation – the model this article puts forward. Familialisation challenges the doctrinal purity of property law, but through distinguishing these two models of familialisation, this article demonstrates that it is a necessary process which ensures a more family-centric distribution of beneficial ownership than would arise if property law principles were applied.

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