DescriptionIn claims by intimate partners for a beneficial interest in the family home, the common law is clear that the courts’ role is to ascertain intimate partners’ own distribution of property according to the general law. It is a distribution declared, and not a redistribution of property that is at stake. Therefore in ascertaining the distribution of beneficial interests in intimate partner trust cases, central to courts’ inquiry is the parties’ intention as to beneficial ownership. Distribution is thus ascertained as an expression of the parties’ will in the guise of intention. These pillars of intimate partner trusts reflect the liberal underpinnings of property law. What goes unremarked in the case law however, is the power dynamic within intimate relations that informs the way in which the parties hold property at law, and the way in which their intentions are expressed. Courts are particularly deft at avoiding considering the role intimate partner violence might play in an ostensible distribution property. This paper draws on case law to identify the high incidence of violence and coercion that is nonetheless largely ignored in the intimate partner trust cases. It goes on to suggest that if intention is truly at the heart of ascertaining the distribution of the parties’ beneficial interests, the courts must move beyond the assumptions of the general law to accommodate the intimate context and with it, the likelihood of violence. In turn, the means of ascribing intention as to property distribution must account for the effect of violence and coercion upon an act of will.
|1 Jun 2017
|Victoria University of Wellington, New Zealand
|Degree of Recognition