Law Commission Succession Project: Communal Family Property?

Abstract

The author presents a personal view of a possible future law of family property. At the heart of that law is the concept of "communal property". Communal property is maintained or built up by some members of the family in the expectation that all members of their family will benefit from it. Because of that expectation the legal owner of communal property may not be able to claim the unfettered power of disposing of it by way of gift, family settlement or will. If called upon to evaluate such arrangements, the courts should have regard to the broader interests of the family as a whole and not just the wishes of the legal owner. This notion is found in the present law governing disputes over the division of matrimonial property and the property of de facto partners. Admittedly, the idea that the whole family (and not just the partners) should benefit has limited application in those disputes. It becomes much more important when a surviving spouse or partner dies, disinheriting members of the family. The concept of communal family property can help to explain the judges' current practice in making awards under the Family Protection Act 1955. It may help resolve a much wider range of issues arising in the reform of the law of inheritance.