BENEFICIAL OWNERSHIP OF THE MATRIMONIAL HOME: MODERN TRENDS IN THE BRITISH COMMONWEALTH
AbstractThe courts have modified the substantive law of property to reflect the sharing that occurs in matrimonial situations; even so, interpretation of certain provisions of the Matrimonial Property Act have proven difficult. This article focuses on the provision granting a wife the full capacity to bring an action against her husband for protection and security of her property, and explains how it is tempered by judicial discretion. Even actions concerning possession or title to the matrimonial home are subject to discretion, which has the effect of placing the wife’s proprietary rights on par with other factors to be weighed in that discretion. The author surveys situations of familial disorganization other than that of the deserted wife to illustrate that bald legal ownership can never be enough by itself to outweigh the delicate emotional and economic considerations brought in to balance. It is shown how the unique communal aspect of matrimony has led to the utilization of absolute discretion to balance proprietary and personal interests. The author urges a new kind of analysis, and focuses his suggestions on two issues: the nature of the claim and the presumption of joint assets.
Keywords:Husband and Wife
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