Judicial Discretion in Ownership Disputes over the Family Home

Abstract

The core focus of this thesis is on the exercise of judicial discretion in the resolution of ownership disputes over the family home. Drawing upon the academic scholarship on judicial discretion, this thesis evaluates how the exercise of discretion has been conceptualised and employed within this specific context. Focusing on both the exercise of judicial discretion in matrimonial property disputes prior to the House of Lords’ decision in Pettitt v Pettitt in 1969 and in the modern implied trust framework, it questions whether there is evidence of judges arrogating enhanced discretion to themselves and whether this is deployed in order to take account of ‘changing social and economic circumstances’ surrounding the ownership of family property. Having identified an increased visibility of discretion in modern family property cases, this thesis questions whether a greater use of discretion within the context of domestic property evidences a departure from traditional property law reasoning and represents a problematic development in the law requiring a return to orthodoxy. This thesis provides a more nuanced understanding as to the exercise of discretion within this context. The claim advanced by this thesis is that judges in this specific context have increased their use of discretion to enable greater sensitivity to the domestic context and, whilst this may appear a controversial move to some, it is a beneficial, principled and structured modification of the property law framework applicable in this area.