Andrew Hayward, ‘Finding a Home for “Family Property” – Stack v. Dowden and Jones v. Kernott

This chapter reflects on whether Stack v. Dowden and Jones v. Kernott deserve to be labelled landmarks in the law. After analysing the two decisions, it advances the argument that the key sticking point for land lawyers was the seemingly ‘discretionary’ nature of the judicial exercise instigated by the recognition of ‘context’ in Stack v. Dowden and the sanctioning of ‘fairness’ in Jones v. Kernott. Immediately after both decisions were decided, comparisons to family law adjudication (an area often typified by the use of discretion) were plentiful with newspaper headlines ranging from ‘Unmarried couples come closer to winning legal divorce rights’ to ‘Unmarried couples granted new legal protection by courts.’ Whilst newspapers are understandably sensationalist, it was telling that similar ‘family law’ connections were made in the academic commentary. Naturally disciplines influence the conceptualisation of family property, but this chapter advances the argument that these comparisons are symptomatic of a broader issue; namely, that family property is still struggling to find a home within the framework of land law in England and Wales. Cumulatively, it is the indeterminate status of family property that results in commentators questioning whether family property actually belongs within land law.

However, after drawing upon the theoretical literature on judicial discretion, this chapter argues that land law can accommodate the discretionary judicial methodology used in Stack v. Dowden and Jones v. Kernott. Whilst it is indisputable that ‘discretionary resolution is par excellence the technique of family law,’ judicial discretion is not alien to land law. Alongside express grants of discretion to the judiciary by Parliament, discretion is implicitly embedded within any type of judicial analysis that relies upon the interpretation of facts and thus there is obvious scope for its application in the often fact-heavy cases in this area. Furthermore, the movement towards a more discretionary, functionalist and pragmatic approach is hardly surprising seeing as ‘common intention,’ which underpins the prevailing approach, provides a problematic foundation for equitable intervention in this area. If these aspects were recognised, both Stack v. Dowden and Jones v. Kernott can be viewed as modernising landmark authorities that rightfully deserve a home within land law.

Hayward, Andrew P., Finding a Home for ‘Family Property’ – Stack v. Dowden and Jones v. Kernott (June 1, 2013). Landmark Cases in Land Law, Forthcoming.

First posted 2013-09-07 06:13:20

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