Showing posts from May, 2022

Is there a single explanation which adequately captures the nature of a beneficiary’s rights under a trust?

No traditional explanation in English law adequately captures the nature of beneficial rights under a trust. Traditionally, Roman law categorised rights into rights in personam and in rem. However, equity has made these terms unsuitable for modern property law, where beneficial interests under a trust has gradually changed from purely personal rights to something close to property rights. In reality, the nature of beneficial rights are best captured as sui generis rights, where rights are not attached to property but flow from the rights of the trustee. This explanation is adequate in theory, but may be difficult to advance in practice.  Problems with existing explanations 1) Personal rights  There are three key demonstrations that the rights under a trust (beneficial rights) are stronger than personal rights. Firstly, beneficial rights bind anyone to whom the property is transferred, except for bona fide purchasers for value (BFP). Maitland suggests that this simply demonstrates a u

To what extent is it fair to say that the UK Parliament has abdicated responsibility for determining how property and money should be divided between adults when their relationship breaks down, and yet has exercised strict control over child maintenance? Have judges been left with too much discretion as between adults and too little in relation children?

The Parliament has vested very wide discretionary powers in the courts with regard to decisions undertaken in the dissemination of assets and maintenance upon divorce to the adults and children involved. The financial consequences to the parties involved in a broken marriage are of utmost significance to them. In addition to the emotional consequences is added the additional burden of deciphering their insecure and uncertain future.  Women involved in the breakdown of a relationship face uncertainty in terms of accommodation and income particularly with reference to any children under her care, whereas the men have to shoulder the burden of supporting two family units especially if they plan to establish a new family. It is evident that the Parliament has provided the fundamental guidelines for the courts to follow with regard to the financial aspects appertaining to the breakdown of marriage and all the parties affected.  The courts utilize these guiding principles; however the