| Acknowledgments |
|
v | |
| Foreword |
|
vii | |
| Preface |
|
ix | |
| Table of Cases |
|
xxxiii | |
| Table of Statutes |
|
xlvii | |
| Table of Statutory Instruments |
|
lv | |
| Table of International Materials |
|
lix | |
| Table of Abbreviations |
|
lxi | |
| Introduction |
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lxiii | |
| Chapter 1 Property |
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1 | (184) |
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1 | (91) |
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Section 1: Ownership of the home |
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1 | (65) |
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1 | (1) |
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The duty of the solicitor on the purchase of a shared home |
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2 | (2) |
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Declaring the beneficial interests on acquisition |
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4 | (1) |
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Express declaration of trust |
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4 | (1) |
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Effects of an express declaration of trust |
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5 | (1) |
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Land Registry Forms; restrictions and cautions |
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6 | (1) |
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7 | (6) |
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Fixed shares and floating shares |
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7 | (1) |
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The advantages of fixed shares |
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8 | (1) |
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The disadvantages of fixed shares |
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8 | (1) |
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The advantages of floating shares |
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9 | (1) |
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The disadvantages of floating shares |
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10 | (1) |
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Fractions, percentages and ratios |
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11 | (1) |
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Shares of the sale price and shares of the net proceeds of sale |
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12 | (1) |
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Who owns what if there is a dispute? |
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13 | (1) |
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Express declaration of beneficial interests |
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13 | (1) |
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14 | (1) |
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14 | (1) |
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Severing the joint tenancy |
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14 | (2) |
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No express declaration of beneficial interests |
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16 | (1) |
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Sole legal ownership or joint legal ownership? |
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16 | (1) |
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17 | (1) |
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17 | (3) |
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Quantification and resulting trusts |
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19 | (1) |
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20 | (26) |
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Establishing a constructive trust |
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21 | (2) |
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Conduct from which a common intention to share the beneficial interests may be inferred in sole name cases |
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23 | (10) |
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33 | (1) |
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Quantification and constructive trusts |
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34 | (12) |
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46 | (9) |
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Accounting for occupation rent |
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55 | (2) |
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56 | (1) |
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Applications for declaration of interest in trust property and order for sale |
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57 | (7) |
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What relief is available? |
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57 | (1) |
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57 | (1) |
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58 | (1) |
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58 | (1) |
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58 | (2) |
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The exercise of the court's discretion |
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60 | (3) |
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63 | (1) |
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64 | (1) |
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Applications under the Married Women's Property Act 1882 |
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64 | (2) |
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What relief is available? |
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64 | (1) |
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64 | (1) |
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64 | (1) |
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64 | (1) |
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Service of the application |
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65 | (1) |
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65 | (1) |
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65 | (1) |
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65 | (1) |
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65 | (1) |
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Applications under Matrimonial Proceedings and Property Act 1970 |
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66 | (1) |
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Section 2: Occupation of the home |
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66 | (19) |
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66 | (1) |
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66 | (1) |
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67 | (1) |
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Orders under Sch 1 to the Children Act 1989 |
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67 | (1) |
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67 | (1) |
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67 | (1) |
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Rights of occupation under Part IV of the Family Law Act 1996 |
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68 | (1) |
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68 | (1) |
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Housing associations and other registered social landlords |
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68 | (5) |
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68 | (2) |
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70 | (3) |
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73 | (1) |
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73 | (1) |
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73 | (1) |
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74 | (1) |
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74 | (1) |
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75 | (1) |
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Protecting the cohabitant in occupation |
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76 | (1) |
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76 | (1) |
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Injunction to prevent termination of tenancy |
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76 | (1) |
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Applying to transfer the tenancy |
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77 | (6) |
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Application to transfer a tenancy under Part IV of the Family Law Act 1996 |
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78 | (3) |
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Application under Sch 1 to the Children Act 1989 |
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81 | (2) |
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83 | (2) |
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Application to the local authority |
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83 | (2) |
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Request to local authority under s 20 of the Children Act 1989 |
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85 | (1) |
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Request to the social services department under s 17 of the Children Act 1989 |
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85 | (1) |
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Application for a loan from the social fund |
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85 | (1) |
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Section 3: Ownership and use of chattels |
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85 | (7) |
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85 | (1) |
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86 | (1) |
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87 | (1) |
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88 | (1) |
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88 | (1) |
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89 | (1) |
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Applications for declarations of ownership and orders for sale |
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89 | (1) |
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89 | (1) |
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89 | (1) |
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90 | (1) |
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90 | (1) |
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90 | (1) |
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91 | (1) |
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Part IV of the Family Law Act 1996 |
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91 | (1) |
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Part B: Procedural Guides |
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92 | (5) |
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Order under Trusts of Land and Appointment of Trustees Act 1996, s 14 |
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92 | (2) |
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92 | (1) |
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92 | (2) |
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Transfer of a Tenancy under Family Law Act 1996, Pt IV, s 53 and Sch 7 |
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94 | (3) |
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94 | (1) |
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95 | (2) |
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97 | (2) |
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Essential information where the dispute is over owner-occupied property |
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97 | (1) |
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Essential information where the dispute is over rented property |
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98 | (1) |
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Acting for a cohabiting couple on the acquisition of property |
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98 | (1) |
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99 | (86) |
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How to use these precedents |
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99 | (1) |
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Section 1: Non-contentious precedents |
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100 | (74) |
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Clauses: Commencement and recitals |
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100 | (3) |
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100 | (1) |
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100 | (1) |
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Recitals of fact and intention: third party contributions |
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101 | (1) |
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101 | (2) |
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103 | (2) |
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103 | (1) |
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Co-owners to be joint tenants until severance and tenants in common in unequal shares after severance |
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103 | (1) |
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Co-owners to be tenants in common until their marriage/civil partnership and subsequently joint tenants |
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104 | (1) |
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Shares of the net proceeds of sale differ from those of the net income until sale |
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104 | (1) |
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Deferred trust of land: 'Mesher' and 'Martin'-type trusts |
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105 | (1) |
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105 | (18) |
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Fixed shares: expressed as fractions or percentages of the net proceeds of sale |
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105 | (2) |
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Fixed shares: expressed as a fixed share of the sale price, less a fixed share of the amount required to redeem the mortgage, less a fixed share of the sale costs |
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107 | (1) |
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Fixed shares: refund of original contributions: provision for abatement: fixed shares of the balance of the net proceeds of sale |
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108 | (2) |
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Fixed shares: refund of original contributions plus interest: provision for abatement: fixed shares of the balance of the net proceeds of sale |
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110 | (1) |
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Fixed shares: refund of original contributions expressed as a fraction or percentage of the sale price: alternative provisions for the division of the balance of the net proceeds of sale |
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111 | (1) |
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Floating shares: in proportion to the contributions made by each co-owner throughout the duration of the trust |
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112 | (1) |
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Floating shares: calculation of the shares: addition of contributions and apportionment of net proceeds of sale pro rata |
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112 | (2) |
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Floating shares: calculation of the shares: introductory clause to the formulae |
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114 | (1) |
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Floating shares: formulae for calculating floating shares |
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114 | (7) |
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Fixed shares or floating shares |
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121 | (2) |
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123 | (8) |
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Contingencies: introductory clause |
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123 | (1) |
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124 | (1) |
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Circumstances in which an application can be made to the court for an order to sell the property |
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125 | (1) |
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Contributions towards repairs and improvements not to affect the co-owners' fixed shares |
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125 | (1) |
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126 | (1) |
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127 | (1) |
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Costs of this declaration |
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127 | (1) |
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128 | (1) |
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Costs of transfer of beneficial interest |
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128 | (1) |
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128 | (2) |
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The nature of this declaration |
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130 | (1) |
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131 | (1) |
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131 | (1) |
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131 | (17) |
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If the co-owners permit any other person to reside with them in the property |
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131 | (1) |
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If a co-owner fails to pay his or her share of the mortgage payments |
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132 | (1) |
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If one co-owner wishes to sell the property and the other co-owner refuses to sell it |
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133 | (1) |
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If one co-owner dies and the other does not become solely and beneficially entitled to the property |
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134 | (1) |
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If a co-owner is declared bankrupt |
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135 | (1) |
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If the co-owners extend, alter, improve or repair the property |
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136 | (2) |
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If a co-owner is unemployed or incapable of working |
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138 | (2) |
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If a co-owner is unemployed or incapable of working because she is pregnant or he or she is looking after a child or children |
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140 | (1) |
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If a co-owner attends a full-time course of education |
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140 | (3) |
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If both co-owners wish to keep the property |
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143 | (1) |
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If a co-owner moves out before the property is sold |
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144 | (2) |
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If the co-owners separate shortly after they purchase the property |
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146 | (1) |
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If a co-owner wishes to realise his or her share in the property |
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147 | (1) |
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148 | (17) |
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Declaration of trust by co-owners |
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148 | (8) |
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The person who 'moves in' |
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156 | (3) |
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Declaration of trust by sole owner |
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159 | (3) |
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Variation of a Declaration of Trust |
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162 | (1) |
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Checklist for ownership of the home |
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163 | (2) |
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HM Land Registry Form TR1 |
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165 | (2) |
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167 | (2) |
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HM Land Registry Form SEV |
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169 | (2) |
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HM Land Registry Form RX1 |
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171 | (3) |
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Section 2: Contentious precedents |
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174 | (11) |
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Claim form for a declaration of a beneficial interest in property and an order for sale under the Trusts of Land and Appointment of Trustees Act 1996 |
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174 | (2) |
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Claimant's witness statement in support of application for declaration/order for sale |
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176 | (2) |
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Claimant's witness statement in support of application for sale of land under the Trusts of Land and Appointment of Trustees Act 1996 |
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178 | (1) |
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Order for sale of property under the Trusts of Land and Appointment of Trustees Act 1996 |
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178 | (2) |
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Application for transfer of tenancy under Part IV of the Family Law Act 1996 |
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180 | (1) |
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Sworn statement in support of application for transfer of tenancy under Part IV of the Family Law Act 1996 |
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180 | (1) |
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Order for transfer of protected or secure tenancy under Part IV of the Family Law Act 1996 |
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181 | (1) |
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Order for transfer of statutory tenancy under Part IV of the Family Law Act 1996 |
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182 | (1) |
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Tomlin order on compromise of dispute over property |
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182 | (1) |
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Declaration of ownership of chattels |
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183 | (2) |
| Chapter 2 Cohabitation Agreements |
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185 | (52) |
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185 | (5) |
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185 | (1) |
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185 | (1) |
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Validity of cohabitation agreements |
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186 | (1) |
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Enforceability of cohabitation agreements |
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187 | (2) |
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The intention to create legal relations |
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188 | (1) |
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188 | (1) |
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188 | (1) |
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Duress or coercion; inequality of bargaining power |
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188 | (1) |
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Ousting the court's jurisdiction |
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189 | (1) |
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Contents of a cohabitation agreement |
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189 | (1) |
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190 | (3) |
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Checklist-points to consider when advising on and drafting a cohabitation agreement |
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190 | (1) |
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Checklist of matters to be contained in every cohabitation agreement |
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191 | (1) |
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Checklist of matters that may be contained in agreement intended to regulate property and financial matters |
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192 | (1) |
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193 | (44) |
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193 | (29) |
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Acknowledgment of advice received |
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193 | (1) |
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193 | (1) |
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193 | (1) |
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Attestation clause incorporating legal adviser's certificate |
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193 | (1) |
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194 | (1) |
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Beneficial interests: separate |
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194 | (1) |
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Binding effect of agreement |
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194 | (1) |
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194 | (1) |
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Business interests: separate |
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194 | (1) |
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Cancellation of cohabitation agreement |
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195 | (1) |
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195 | (1) |
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196 | (1) |
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196 | (1) |
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Children: statement of intentions |
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196 | (1) |
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197 | (1) |
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197 | (1) |
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197 | (1) |
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197 | (1) |
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198 | (1) |
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198 | (1) |
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198 | (1) |
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Covenants relating to residential property |
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199 | (1) |
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199 | (1) |
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199 | (1) |
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200 | (1) |
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200 | (1) |
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200 | (1) |
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201 | (1) |
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201 | (1) |
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201 | (1) |
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Execution of this agreement |
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202 | (1) |
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202 | (1) |
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202 | (1) |
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203 | (1) |
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Gifts between cohabitants |
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203 | (1) |
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203 | (1) |
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203 | (1) |
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203 | (1) |
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Housekeeping allowance: fixed sum |
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203 | (1) |
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204 | (1) |
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204 | (1) |
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204 | (1) |
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Intention to create legal relations |
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205 | (1) |
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Interpretation of this agreement |
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205 | (1) |
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205 | (1) |
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Joint use: separate ownership |
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206 | (1) |
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Legal adviser's certificate |
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206 | (1) |
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Life insurance: agreement to take out and maintain a policy |
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206 | (1) |
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207 | (1) |
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207 | (1) |
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208 | (1) |
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208 | (1) |
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Non-disclosure of agreement to third parties |
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209 | (1) |
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Pensions and death-in-service benefits |
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209 | (1) |
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Present property: separate |
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209 | (1) |
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Present property and debts: separate |
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209 | (1) |
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209 | (1) |
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210 | (1) |
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Recitals: personal information about the parties |
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211 | (1) |
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Recitals relating to the child(ren) |
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211 | (1) |
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Release of rights (if any) over the other's separate property |
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212 | (1) |
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Release of right to apply to the court for an order under the Inheritance (Provision for Family and Dependants) Act 1975 |
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212 | (1) |
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Religious upbringing of child(ren) |
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212 | (1) |
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213 | (1) |
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213 | (1) |
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213 | (1) |
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213 | (1) |
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214 | (1) |
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214 | (1) |
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214 | (1) |
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214 | (1) |
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215 | (1) |
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216 | (1) |
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216 | (4) |
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Termination of agreement on marriage: consequences |
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220 | (1) |
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Transfers between cohabitants |
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220 | (1) |
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221 | (1) |
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221 | (1) |
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222 | (15) |
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222 | (3) |
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Keeping everything separate |
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225 | (3) |
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One party supporting the other |
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228 | (4) |
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Agreement relating to personal chattels acquired jointly by cohabitants |
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232 | (2) |
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Agreement setting up a joint account to pay housing costs, etc |
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234 | (3) |
| Chapter 3 Taxation of Unmarried Couples |
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237 | (12) |
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237 | (12) |
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237 | (1) |
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237 | (3) |
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237 | (1) |
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238 | (1) |
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238 | (1) |
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Universal credit, child tax credit and working tax credit |
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238 | (2) |
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240 | (2) |
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241 | (1) |
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242 | (6) |
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242 | (1) |
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243 | (1) |
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244 | (1) |
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Gifts not intended to confer benefit |
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245 | (1) |
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245 | (1) |
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Business and agricultural reliefs |
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245 | (1) |
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246 | (2) |
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248 | (1) |
| Chapter 4 Personal Protection |
|
249 | (86) |
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249 | (35) |
|
Section 1: Family Law Act 1996, Part IV |
|
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249 | (30) |
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249 | (1) |
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250 | (1) |
|
Which level of judiciary? |
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250 | (1) |
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Applications to vary, extend or discharge an order made under Part IV |
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251 | (1) |
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251 | (3) |
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Who may apply for a non-molestation order? |
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251 | (1) |
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252 | (2) |
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The exercise of the court's discretion |
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254 | (1) |
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Procedure on an application for a non-molestation order |
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254 | (4) |
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254 | (1) |
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255 | (1) |
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255 | (1) |
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256 | (1) |
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257 | (1) |
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257 | (1) |
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Application without notice for a non-molestation order |
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258 | (2) |
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260 | (1) |
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260 | (1) |
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261 | (1) |
|
Who may apply for an occupation order? |
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|
261 | (1) |
|
Which level of judiciary? |
|
|
261 | (1) |
|
Which section will apply? |
|
|
261 | (1) |
|
Occupation orders under section 33 |
|
|
262 | (2) |
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|
|
262 | (1) |
|
The court's powers under section 33 |
|
|
262 | (1) |
|
The balance of harm test under section 33 |
|
|
263 | (1) |
|
The exercise of the court's discretion under section 33 |
|
|
263 | (1) |
|
Additional provision under section 40 |
|
|
264 | (1) |
|
Exercise of additional powers when an occupation order is made under section 33 |
|
|
265 | (1) |
|
Duration of orders under section 33 |
|
|
265 | (1) |
|
Occupation orders under section 36 |
|
|
265 | (2) |
|
|
|
265 | (1) |
|
The court's powers under section 36 |
|
|
265 | (1) |
|
The exercise of the court's discretion under section 36 |
|
|
266 | (1) |
|
First stage in the exercise of the court's discretion under section 36 |
|
|
266 | (1) |
|
Second stage in the exercise of the court's discretion under section 36 |
|
|
266 | (1) |
|
The balance of harm test under section 36 |
|
|
267 | (1) |
|
Additional provision under section 40 |
|
|
267 | (1) |
|
Duration of orders under section 36 |
|
|
267 | (1) |
|
Occupation orders under section 38 |
|
|
267 | (2) |
|
|
|
267 | (1) |
|
The court's powers under section 38 |
|
|
268 | (1) |
|
The exercise of the court's discretion under section 38 |
|
|
268 | (1) |
|
The balance of harm test under section 38 |
|
|
268 | (1) |
|
Duration of orders under section 38 |
|
|
269 | (1) |
|
Procedure on application for an occupation order |
|
|
269 | (1) |
|
|
|
269 | (1) |
|
|
|
269 | (1) |
|
Application for an occupation order without notice to the respondent |
|
|
270 | (1) |
|
|
|
270 | (1) |
|
|
|
270 | (1) |
|
|
|
271 | (1) |
|
Duration of power of arrest |
|
|
272 | (1) |
|
Procedure for power of arrest |
|
|
272 | (1) |
|
Enforcement of orders under Part IV |
|
|
272 | (2) |
|
Enforcement as a criminal offence under s 42A |
|
|
272 | (1) |
|
Enforcement by power of arrest |
|
|
273 | (1) |
|
Application for a warrant of arrest |
|
|
273 | (1) |
|
Committal for contempt of court |
|
|
274 | (1) |
|
|
|
275 | (1) |
|
Procedure on application to commit |
|
|
275 | (1) |
|
|
|
275 | (4) |
|
|
|
277 | (2) |
|
Section 2: Other remedies |
|
|
279 | (5) |
|
The Protection from Harassment Act 1997 |
|
|
279 | (3) |
|
|
|
280 | (1) |
|
Prohibition of harassment |
|
|
280 | (1) |
|
|
|
281 | (1) |
|
|
|
282 | (1) |
|
|
|
282 | (1) |
|
|
|
282 | (1) |
|
|
|
282 | (1) |
|
|
|
283 | (1) |
|
|
|
283 | (1) |
|
Part B: Procedural Guides |
|
|
284 | (33) |
|
Non-molestation and/or occupation order under Family Law Act 1996, Pt IV |
|
|
284 | (9) |
|
|
|
284 | (1) |
|
|
|
285 | (8) |
|
Transfer of a Tenancy under Family Law Act 1996, Pt IV, s 53 and Sch 7 |
|
|
293 | (2) |
|
|
|
293 | (1) |
|
|
|
294 | (1) |
|
Claims under the Protection from Harassment Act 1997 |
|
|
295 | (1) |
|
|
|
295 | (1) |
|
Injunctions under the Protection from Harassment Act 1997 |
|
|
296 | (1) |
|
|
|
296 | (8) |
|
|
|
296 | (8) |
|
Committal and arrest for disobedience of an injunctive order or breach of an undertaking in the Family Court, the High Court and the County Court |
|
|
304 | (13) |
|
|
|
304 | (1) |
|
|
|
304 | (1) |
|
Committal proceedings begun by notice to show good reason |
|
|
305 | (1) |
|
Committal proceedings begun by arrest under a power of arrest |
|
|
305 | (1) |
|
Committal proceedings begun by arrest under a warrant of arrest |
|
|
305 | (1) |
|
|
|
306 | (1) |
|
Conduct of committal proceedings where the respondent is before the court following an arrest- preliminaries |
|
|
306 | (1) |
|
Conduct of committal proceedings when the respondent is before the court, whether on notice or following an arrest |
|
|
306 | (1) |
|
|
|
307 | (1) |
|
|
|
307 | (1) |
|
|
|
307 | (10) |
|
|
|
317 | (3) |
|
Checklist for first instructions for applications under Part IV of the Family Law Act 1996 |
|
|
317 | (1) |
|
Checklist of steps for application under Part IV of the Family Law Act 1996 |
|
|
318 | (2) |
|
|
|
320 | (15) |
|
Application in Form FL401 for non-molestation or occupation order under Family Law Act 1996, s 36 |
|
|
320 | (10) |
|
Witness statement in support of application without notice for non-molestation and occupation orders under s 33 of the Family Law Act 1996 |
|
|
330 | (2) |
|
Witness statement in support of application for service by an alternative method |
|
|
332 | (1) |
|
Letter to mortgagee/landlord of dwelling-house the subject of an application for an occupation order under s 33 or s 36 of the Family Law Act 1996 |
|
|
333 | (2) |
| Chapter 5 Children |
|
335 | (100) |
|
|
|
335 | (56) |
|
Section 1: Registration of births; parental responsibility |
|
|
335 | (24) |
|
|
|
335 | (1) |
|
|
|
335 | (2) |
|
Determination of parentage |
|
|
337 | (1) |
|
|
|
337 | (1) |
|
Evidence on an application for declaration of parentage |
|
|
337 | (2) |
|
Refusal to submit to testing |
|
|
339 | (1) |
|
|
|
339 | (2) |
|
|
|
341 | (1) |
|
Acquiring parental responsibility |
|
|
341 | (1) |
|
Jointly registering the birth |
|
|
342 | (1) |
|
Parental responsibility agreement |
|
|
342 | (1) |
|
|
|
343 | (1) |
|
|
|
343 | (1) |
|
Parental responsibility order |
|
|
343 | (6) |
|
|
|
344 | (1) |
|
The exercise of the court's discretion |
|
|
344 | (4) |
|
|
|
348 | (1) |
|
|
|
348 | (1) |
|
Applications for orders under s 8 of the Children Act 1989 |
|
|
349 | (3) |
|
|
|
351 | (1) |
|
|
|
352 | (6) |
|
Who may change the surname of a child? |
|
|
353 | (1) |
|
|
|
354 | (1) |
|
Exercise of the court's discretion |
|
|
355 | (3) |
|
Appointment of a guardian |
|
|
358 | (1) |
|
|
|
359 | (4) |
|
|
|
359 | (1) |
|
The Adoption and Children Act 2002 |
|
|
360 | (1) |
|
The Adoption and Children Act 2002 and applications by cohabitants |
|
|
360 | (1) |
|
|
|
360 | (1) |
|
Preliminaries to adoption |
|
|
361 | (1) |
|
|
|
361 | (1) |
|
|
|
361 | (1) |
|
The status of the unmarried father |
|
|
362 | (1) |
|
Unmarried fathers and party status |
|
|
362 | (1) |
|
The exercise of the court's discretion |
|
|
363 | (1) |
|
Section 3: Child Abduction |
|
|
363 | (4) |
|
Removal of children from the jurisdiction |
|
|
363 | (1) |
|
The unmarried parent without parental responsibility |
|
|
363 | (1) |
|
|
|
364 | (3) |
|
Section 4: Financial provision for children |
|
|
367 | (36) |
|
|
|
367 | (1) |
|
|
|
368 | (1) |
|
|
|
368 | (1) |
|
|
|
368 | (5) |
|
Qualifying child: meaning of 'child' |
|
|
369 | (1) |
|
The child support calculation |
|
|
369 | (2) |
|
Variation, collection and enforcement |
|
|
371 | (1) |
|
Top-up orders: discretionary principles |
|
|
372 | (1) |
|
Agreements and child maintenance |
|
|
372 | (1) |
|
Schedule 1 to the Children Act 1989 |
|
|
373 | (4) |
|
What relief is available? |
|
|
373 | (1) |
|
|
|
373 | (1) |
|
|
|
374 | (1) |
|
|
|
374 | (1) |
|
Procedure in the Family Court |
|
|
375 | (1) |
|
|
|
375 | (1) |
|
Procedure at first hearing |
|
|
375 | (1) |
|
The exercise of the court's discretion |
|
|
376 | (1) |
|
|
|
377 | (6) |
|
|
|
377 | (1) |
|
|
|
378 | (3) |
|
Transfer or settlement of property |
|
|
381 | (1) |
|
|
|
382 | (1) |
|
|
|
382 | (1) |
|
|
|
382 | (1) |
|
Termination by resumption of cohabitation |
|
|
383 | (1) |
|
Enforcement of financial provision orders |
|
|
383 | (8) |
|
Enforcement of payment of child maintenance arrears and other financial provision |
|
|
383 | (1) |
|
Enforcement of arrears of child support maintenance following an assessment by CMS |
|
|
383 | (1) |
|
Enforcement of child periodical payments |
|
|
384 | (1) |
|
Enforcement procedures for financial provision and child maintenance |
|
|
384 | (1) |
|
|
|
385 | (4) |
|
Procedures available in the High Court and Family Court for enforcement |
|
|
389 | (1) |
|
Registration for enforcement in the Family Court |
|
|
390 | (1) |
|
Part B: Procedural Guides |
|
|
391 | (12) |
|
Scientific test direction |
|
|
391 | (1) |
|
|
|
391 | (1) |
|
|
|
391 | (1) |
|
Parental responsibility order |
|
|
392 | (3) |
|
|
|
392 | (1) |
|
|
|
393 | (2) |
|
Discharge of a parental responsibility order or a parental responsibility agreement |
|
|
395 | (2) |
|
|
|
395 | (1) |
|
|
|
395 | (2) |
|
Appointment or removal of a guardian |
|
|
397 | (3) |
|
|
|
397 | (1) |
|
|
|
398 | (2) |
|
Financial relief for a child under the Children Act 1989, Sch 1 |
|
|
400 | (35) |
|
|
|
400 | (1) |
|
|
|
400 | (3) |
|
|
|
403 | (32) |
|
Parental Responsibility Agreement |
|
|
403 | (4) |
|
Application by an unmarried father for a parental responsibility order |
|
|
407 | (6) |
|
Change of name deed made by a mother on behalf of her child: not intended for enrolment |
|
|
413 | (1) |
|
Informal appointment of a guardian by one parent |
|
|
414 | (1) |
|
Informal appointment of a guardian by both parents |
|
|
414 | (1) |
|
Child maintenance agreement |
|
|
414 | (2) |
|
Notice of [ intention to proceed with] an application for a financial remedy (other than a financial order) in the county or High Court |
|
|
416 | (3) |
|
Financial statement for a financial remedy (other than a financial order or financial relief after an overseas divorce or dissolution etc) in the county or High Court |
|
|
419 | (16) |
| Chapter 6 Death and Succession |
|
435 | (114) |
|
|
|
435 | (57) |
|
Section 1: Making provision for death |
|
|
435 | (5) |
|
|
|
435 | (1) |
|
|
|
436 | (1) |
|
Describing the cohabitant |
|
|
437 | (1) |
|
|
|
437 | (1) |
|
|
|
438 | (1) |
|
|
|
439 | (1) |
|
|
|
439 | (1) |
|
|
|
439 | (1) |
|
Section 2: Death of a cohabitant |
|
|
440 | (48) |
|
|
|
440 | (1) |
|
Cohabitant leaves a valid will |
|
|
440 | (1) |
|
Cohabitant dies intestate |
|
|
440 | (2) |
|
Surviving spouses and civil partners and the effect of a decree of judicial separation or separation order |
|
|
442 | (1) |
|
Children of a deceased cohabitant |
|
|
442 | (1) |
|
|
|
443 | (1) |
|
Applications under the Inheritance (Provision for Family and Dependants) Act 1975 |
|
|
444 | (14) |
|
|
|
444 | (1) |
|
What relief is available? |
|
|
444 | (1) |
|
|
|
445 | (1) |
|
The parties to the application |
|
|
446 | (1) |
|
|
|
446 | (1) |
|
|
|
447 | (1) |
|
Time for making the application |
|
|
448 | (1) |
|
Application for permission to apply out of time |
|
|
448 | (3) |
|
The ground for the application |
|
|
451 | (3) |
|
The court's approach to whether reasonable financial provision has been made |
|
|
454 | (1) |
|
Matters to which the court must have regard in every case in determining whether reasonable financial provision has been made for the applicant |
|
|
455 | (2) |
|
|
|
457 | (1) |
|
Application by a surviving cohabitant under Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(ba) |
|
|
458 | (8) |
|
Who is eligible to apply? |
|
|
458 | (6) |
|
Making out the ground for the application |
|
|
464 | (1) |
|
Matters to which the court must have regard |
|
|
464 | (1) |
|
The exercise of the court's discretion |
|
|
465 | (1) |
|
Application by a 'dependant' under section 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975 |
|
|
466 | (15) |
|
Who is eligible to apply? |
|
|
466 | (3) |
|
Making out the ground for the application |
|
|
469 | (1) |
|
Matters to which the court must have regard |
|
|
470 | (2) |
|
The exercise of the court's discretion |
|
|
472 | (1) |
|
Applications under the Inheritance (Provision for Family and Dependants) Act 1975 by children |
|
|
472 | (1) |
|
Who is eligible to apply under section 1(1)(c)? |
|
|
473 | (1) |
|
Who is eligible to apply under section 1(1)(d)? |
|
|
473 | (2) |
|
Who is eligible to apply under section 1(1)(e)? |
|
|
475 | (1) |
|
The ground for the application |
|
|
475 | (1) |
|
Matters to which the court must have regard |
|
|
475 | (1) |
|
The exercise of the court's discretion |
|
|
476 | (1) |
|
Approach of the court to claims by minor children |
|
|
477 | (1) |
|
Approach of the court to claims by adult children |
|
|
477 | (3) |
|
Circumstances at the date of the hearing |
|
|
480 | (1) |
|
|
|
481 | (1) |
|
|
|
481 | (1) |
|
|
|
481 | (1) |
|
|
|
482 | (1) |
|
|
|
482 | (1) |
|
|
|
482 | (1) |
|
Transactions and dispositions intended to defeat claims under Inheritance (Provision for Family and Dependants) Act 1975, s 2 |
|
|
483 | (1) |
|
|
|
483 | (1) |
|
Interlocutory applications |
|
|
483 | (1) |
|
Striking out a claim as disclosing no reasonable cause of action |
|
|
483 | (1) |
|
|
|
484 | (1) |
|
|
|
484 | (1) |
|
|
|
484 | (1) |
|
|
|
485 | (1) |
|
|
|
485 | (1) |
|
|
|
485 | (1) |
|
Tax implications of orders under the Inheritance (Provision for Family and Dependants) Act 1975 |
|
|
486 | (1) |
|
Claims by dependants following fatal accidents |
|
|
486 | (2) |
|
|
|
486 | (1) |
|
Law Reform (Miscellaneous Provisions) Act 1934 |
|
|
487 | (1) |
|
Criminal Injuries Compensation Scheme |
|
|
487 | (1) |
|
Section 3: Illness or incapacity of a cohabitant |
|
|
488 | (4) |
|
|
|
488 | (1) |
|
Advance decisions or 'living wills' |
|
|
489 | (2) |
|
The content of an advance decision |
|
|
489 | (1) |
|
The legal status of an advance decision |
|
|
490 | (1) |
|
Validity of an advance decision |
|
|
490 | (1) |
|
Applicability of an advance decision |
|
|
490 | (1) |
|
Lasting Powers of Attorney (LPAs) |
|
|
491 | (1) |
|
|
|
492 | (5) |
|
Claim for Financial Provision under the Inheritance (Provision for Family and Dependants) Act 1975 |
|
|
492 | (5) |
|
|
|
492 | (1) |
|
|
|
492 | (5) |
|
|
|
497 | (1) |
|
Checklist for first instructions on making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 |
|
|
497 | (1) |
|
|
|
498 | (51) |
|
Section 1: Non-contentious precedents |
|
|
498 | (31) |
|
|
|
498 | (24) |
|
Combined commencement and revocation clause |
|
|
498 | (1) |
|
Commencement including date: separate revocation clause |
|
|
498 | (1) |
|
Will in expectation of marriage |
|
|
498 | (1) |
|
Will in expectation of marriage: some provisions applying before marriage and others on marriage |
|
|
498 | (1) |
|
|
|
499 | (1) |
|
Declaration of non-mutuality |
|
|
499 | (1) |
|
|
|
500 | (1) |
|
|
|
500 | (1) |
|
Appointment of cohabitant as executor |
|
|
501 | (1) |
|
Appointment of cohabitant as sole executor and universal beneficiary |
|
|
501 | (1) |
|
Appointment of executors and trustees including a professional charging clause |
|
|
502 | (1) |
|
|
|
502 | (1) |
|
Appointment of guardian and substitute guardian |
|
|
502 | (1) |
|
|
|
503 | (1) |
|
Absolute gift of (a share of) a house |
|
|
503 | (2) |
|
Life or lesser interest in (a share of) a dwelling and its net proceeds of sale |
|
|
505 | (1) |
|
Occupation rights restricted to a particular property: variation lifting that restriction |
|
|
506 | (1) |
|
Option to purchase (a share of) a dwelling |
|
|
506 | (2) |
|
Bequest of personal chattels |
|
|
508 | (1) |
|
Bequest of personal chattels: cohabitant to choose |
|
|
508 | (1) |
|
|
|
508 | (1) |
|
Cohabitation as a condition precedent: pecuniary legacy |
|
|
509 | (1) |
|
Pecuniary legacy: index-linked |
|
|
509 | (1) |
|
|
|
510 | (1) |
|
Lump sum to buy an annuity |
|
|
510 | (1) |
|
Administration trusts and definition of residuary estate |
|
|
510 | (1) |
|
|
|
511 | (6) |
|
|
|
517 | (2) |
|
Statement for the purposes of the Inheritance (Provision for Family and Dependants) Act 1975 |
|
|
519 | (1) |
|
The word 'cohabits' in wills |
|
|
520 | (1) |
|
|
|
521 | (1) |
|
|
|
521 | (1) |
|
|
|
522 | (7) |
|
Pension scheme: request to trustees |
|
|
522 | (1) |
|
Codicil 'disinheriting' former cohabitant |
|
|
522 | (1) |
|
Will: unmarried mother leaving her entire estate to her child under 18 |
|
|
523 | (1) |
|
Will: childless unmarried couple: all to the surviving partner: gift over to their respective parents |
|
|
524 | (1) |
|
Will: unmarried couple with minor children: both parents have parental responsibility: all to the surviving partner: gift over to children: further gift over in case of a family catastrophe |
|
|
525 | (1) |
|
Will: older unmarried couple: life interest to the survivor |
|
|
526 | (1) |
|
Will: older unmarried couple: limited provision for the surviving partner: residue to the testator's children |
|
|
526 | (2) |
|
Application for a standing search |
|
|
528 | (1) |
|
Section 2: Contentious precedents |
|
|
529 | (20) |
|
Claim form for application by surviving cohabitant for provision from the estate of a deceased cohabitant |
|
|
529 | (2) |
|
Claim form for application by dependant for provision from estate and permission to proceed out of time |
|
|
531 | (5) |
|
Witness statement in support of a claim by a surviving cohabitant for provision from estate of deceased cohabitant and application for an interim order |
|
|
536 | (2) |
|
Witness statement of dependant in support of claim for provision from estate and application for permission to proceed outside the time-limits |
|
|
538 | (2) |
|
Witness statement of cohabitant in support of claim for provision for herself and child of the family, for an interim payment and for the deceased's beneficial interest in jointly owned property to be treated as part of his net estate |
|
|
540 | (2) |
|
Witness statement of adult in support of claim for provision from estate of deceased step-parent |
|
|
542 | (2) |
|
Witness statement of personal representatives in answer to claim |
|
|
544 | (1) |
|
Specimen directions on application for provision from estate |
|
|
545 | (1) |
|
Order on application for interim payment |
|
|
546 | (1) |
|
Order on application for provision from estate |
|
|
547 | (2) |
| Chapter 7 Pension Rights of Cohabitants |
|
549 | (14) |
|
|
|
549 | (12) |
|
|
|
549 | (1) |
|
|
|
550 | (1) |
|
|
|
550 | (2) |
|
|
|
550 | (1) |
|
|
|
550 | (1) |
|
|
|
551 | (1) |
|
|
|
552 | (1) |
|
Taxation of pension schemes |
|
|
553 | (2) |
|
Taxation of pension schemes |
|
|
553 | (1) |
|
Inheritance (Provision for Family and Dependants) Act 1975 |
|
|
554 | (1) |
|
Occupational pension schemes |
|
|
555 | (3) |
|
|
|
555 | (1) |
|
Pensions for surviving dependants and nominees |
|
|
555 | (2) |
|
Lump sum death in service benefits |
|
|
557 | (1) |
|
|
|
558 | (1) |
|
|
|
558 | (1) |
|
|
|
558 | (1) |
|
|
|
559 | (1) |
|
Auto-enrolment in workplace pension schemes |
|
|
560 | (1) |
|
|
|
560 | (1) |
|
|
|
560 | (1) |
|
Impact of cohabitation on survivors' pensions |
|
|
561 | (1) |
|
|
|
561 | (2) |
| Chapter 8 Pre-nuptial Agreements |
|
563 | (124) |
|
|
|
563 | (86) |
|
|
|
563 | (6) |
|
|
|
563 | (1) |
|
|
|
564 | (2) |
|
|
|
566 | (3) |
|
Modern relevance of the pre-nuptial agreement |
|
|
569 | (3) |
|
|
|
572 | (1) |
|
The case-law-Hyman to Radmacher |
|
|
573 | (10) |
|
Radmacher v Granatino-the appeals |
|
|
583 | (26) |
|
Decision of the Court of Appeal |
|
|
583 | (3) |
|
Decision of the Supreme Court |
|
|
586 | (7) |
|
|
|
593 | (16) |
|
Other jurisdictions and human rights |
|
|
609 | (3) |
|
|
|
612 | (4) |
|
|
|
615 | (1) |
|
The essentials of a pre-nuptial agreement |
|
|
616 | (16) |
|
|
|
616 | (2) |
|
|
|
618 | (1) |
|
|
|
619 | (1) |
|
|
|
620 | (1) |
|
|
|
621 | (1) |
|
|
|
622 | (2) |
|
|
|
624 | (5) |
|
Professional liability limitation |
|
|
629 | (3) |
|
|
|
632 | (5) |
|
|
|
632 | (5) |
|
|
|
637 | (8) |
|
The Law Commission report |
|
|
637 | (3) |
|
'Qualifying Nuptial Agreement'-some applications |
|
|
640 | (2) |
|
'Qualifying Nuptial Agreements'-legal advice guidance |
|
|
642 | (1) |
|
'Qualifying Nuptial Agreements'-an overview |
|
|
642 | (1) |
|
Need for reform-commentary |
|
|
643 | (2) |
|
|
|
645 | (4) |
|
|
|
649 | (38) |
|
|
|
649 | (38) |
| Chapter 9 Cohabitation and Welfare Benefits |
|
687 | (92) |
|
|
|
687 | (92) |
|
|
|
687 | (10) |
|
'Living together as a married couple' |
|
|
687 | (1) |
|
Welfare benefits: a very brief introduction |
|
|
688 | (6) |
|
|
|
694 | (3) |
|
Why cohabitation is relevant in social security and tax credits law |
|
|
697 | (1) |
|
Differences in treatment as between couples and single people |
|
|
697 | (1) |
|
Cohabitation rules in the benefits system |
|
|
698 | (3) |
|
Which benefits and tax credits are affected by the 'living together' tests? |
|
|
698 | (2) |
|
Areas where cohabitation matters |
|
|
700 | (1) |
|
When does 'couple' require marriage or civil partnership? |
|
|
701 | (1) |
|
Social security definitions of couple |
|
|
701 | (5) |
|
|
|
701 | (3) |
|
Types of cohabitation in social security law |
|
|
704 | (1) |
|
Checklist: are they married or civil partners? |
|
|
705 | (1) |
|
Applying the 'living together' test if marriage and civil partnership are discounted |
|
|
705 | (1) |
|
What constitutes living together as a married couple? |
|
|
706 | (8) |
|
|
|
706 | (2) |
|
|
|
708 | (2) |
|
|
|
710 | (2) |
|
Using the lists of factors: standing back |
|
|
712 | (2) |
|
Members of the same household |
|
|
714 | (11) |
|
How to approach the question |
|
|
714 | (1) |
|
|
|
715 | (1) |
|
Is the household test overriding? |
|
|
715 | (1) |
|
Does the client share a household? |
|
|
716 | (2) |
|
The alleged partner lives at a different address |
|
|
718 | (1) |
|
The alleged partner stays over but it is not a shared household |
|
|
719 | (1) |
|
They live at the same address but in separate households under the same roof |
|
|
720 | (4) |
|
What if a shared household is proved though? |
|
|
724 | (1) |
|
|
|
725 | (4) |
|
|
|
725 | (1) |
|
Disability and care-and some general principles |
|
|
725 | (2) |
|
Other reasons for living together in the same household |
|
|
727 | (2) |
|
Future plans, intention, motive and purpose |
|
|
729 | (2) |
|
|
|
729 | (2) |
|
|
|
731 | (14) |
|
Sex does matter-but is it a determinative factor? |
|
|
731 | (1) |
|
|
|
732 | (1) |
|
The need for enquiry about sex |
|
|
733 | (2) |
|
Claimant and alleged partner have never had sex |
|
|
735 | (2) |
|
No sex now? No sex ever?: the evolution of the Handbook |
|
|
737 | (2) |
|
|
|
739 | (2) |
|
Previous sexual relationship, now ceased |
|
|
741 | (3) |
|
Faithfulness-other sex partners |
|
|
744 | (1) |
|
Stability of the relationship |
|
|
745 | (5) |
|
|
|
745 | (1) |
|
What does stability mean? |
|
|
745 | (1) |
|
How is time spent together? |
|
|
746 | (1) |
|
|
|
747 | (1) |
|
|
|
748 | (1) |
|
Relationship long-term but evolving? |
|
|
749 | (1) |
|
|
|
749 | (1) |
|
|
|
749 | (1) |
|
|
|
750 | (4) |
|
|
|
750 | (1) |
|
|
|
750 | (1) |
|
|
|
750 | (1) |
|
Does either alleged partner maintain the other? |
|
|
751 | (1) |
|
Shared or separated money |
|
|
752 | (1) |
|
|
|
753 | (1) |
|
|
|
753 | (1) |
|
|
|
754 | (1) |
|
|
|
754 | (4) |
|
|
|
754 | (1) |
|
|
|
754 | (1) |
|
Children as proof of sexual relationship |
|
|
755 | (1) |
|
|
|
755 | (1) |
|
|
|
755 | (1) |
|
Regarding the alleged partner as a (step-)parent |
|
|
756 | (1) |
|
|
|
757 | (1) |
|
Inaction by the Child Support Agency or Child Maintenance Service |
|
|
757 | (1) |
|
Stages of children growing up |
|
|
758 | (1) |
|
|
|
758 | (4) |
|
|
|
758 | (1) |
|
|
|
759 | (1) |
|
Claimant's own description |
|
|
759 | (1) |
|
Acknowledging themselves as a couple |
|
|
760 | (1) |
|
|
|
760 | (1) |
|
|
|
761 | (1) |
|
|
|
762 | (1) |
|
Living together in same-sex cases |
|
|
762 | (2) |
|
Provisions of the Civil Partnership Act 2004 |
|
|
762 | (1) |
|
Arguing for single status in alleged same-sex couple cases |
|
|
763 | (1) |
|
|
|
764 | (2) |
|
|
|
764 | (1) |
|
DMG guidance on the temporary absence of one party |
|
|
764 | (1) |
|
|
|
765 | (1) |
|
|
|
766 | (1) |
|
|
|
766 | (1) |
|
Unlawful or prohibited relationships |
|
|
766 | (2) |
|
|
|
766 | (2) |
|
Running a cohabitation case against the DWP, HMRC or a local authority |
|
|
768 | (11) |
|
How the DWP, HMRC and local authorities make adverse cohabitation decisions |
|
|
768 | (1) |
|
Practical issues to address |
|
|
769 | (3) |
|
|
|
772 | (1) |
|
Appeals procedure in 'living together' cases |
|
|
773 | (4) |
|
Checklist of issues to address in preparing the appeal |
|
|
777 | (1) |
|
Checklist of areas to cover in your arguments |
|
|
777 | (2) |
| Chapter 10 Miscellaneous |
|
779 | (20) |
|
|
|
779 | (2) |
|
|
|
779 | (1) |
|
|
|
779 | (2) |
|
|
|
781 | (18) |
|
Change of name deed: not intended for enrollment |
|
|
781 | (1) |
|
|
|
781 | (2) |
|
|
|
783 | (3) |
|
Family Law Protocol: Part 12 Cohabitation |
|
|
786 | (13) |
| Index |
|
799 | |
