Q&As

Where the parties are the joint owners of a property and have young children, under which legislation should proceedings be issued, the Trusts of Land and Appointment of Trustees Act 1996 or Schedule 1 to the Children Act 1989? What are the differences between the two?

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Published on LexisPSL on 27/04/2020

The following Family Q&A provides comprehensive and up to date legal information covering:

  • Where the parties are the joint owners of a property and have young children, under which legislation should proceedings be issued, the Trusts of Land and Appointment of Trustees Act 1996 or Schedule 1 to the Children Act 1989? What are the differences between the two?

Under Schedule 1 to the Children Act 1989 (ChA 1989) an order may be made for the payment of a lump sum to be made for the purpose of enabling any liabilities or expenses (ChA 1989, Sch 1, para 5(1)). In addition, the court may also make an order in relation to property, including an order for the transfer or settlement of property to either the applicant for the benefit of the child or to the child themselves. The words ‘for the benefit of the child’ have a wide meaning and should not necessarily be interpreted as giving a child a beneficial interest in the property transferred and the court will not generally order an outright settlement of property on, or transfer to, a child (Lilford v Glynn). See also Practice Note: Capital provision under Schedule 1 to the Children Act 1989.

In deciding whether to exercise its powers under ChA 1989, Sch 1, and if so in what manner, the court will have regard to all the circumstances, including in relation to the child specifically (per ChA 1989, Sch 1, para 4(1)), ie:

  1. the financial needs of the child

  2. the income, earning capacity (if any), property and other financial resources of the child

  3. any physical or mental disability of the child

  4. th

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