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Quantifying Shares in Jointly Owned Property: Stack v Dowden and Kernott v Jones - Family Law journal

Date:30 JUL 2010

ALEXANDER CHANDLER Barrister 1 Garden Court

Compared with ancillary relief a TOLATA claim is not so much a different country as one inspired by the works of Lewis Carroll. Whereas the court exercises a broad discretion to achieve a fair outcome upon divorce in claims between unmarried couples the position is as Tweedledee would say ‘contrariwise'. Through the TOLATA looking-glass the court has no discretion to create an interest in land in favour of a cohabitee however ‘fair' it might seem. Existing rights are declared according to the law of trusts. As Lord Scott of Foscote observed in Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55:

‘... under the present law of England . . . proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion . . . subjective views about which party "ought to win" . . . and the "formless void of individual moral opinion" ...' (para [17] citing Deane J in Muschinski v Dodds (1985) 160 CLR 583))

But how should the court quantify...

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