REMEDIES

What is Marco potentially entitled

to?
In 1994 Marco Contribute half of the remaining 30,000
So far Marco has contributed 15,000
BUT
he and Alice shared the mortgagee expenses equally
This adds another 15,000 to Marcos contribution.
Thus Marco has contributed 30,000 out of the 60,000 meaning that he is
potentially entitled to 50% of the house
In 2014, the house being evaluated 150,000 Marco is entitled to 75,000.
However this sum of 75,000 may potentially increase due to him building a
conservatory and laid out extensive grounds This may mean that it was Marco
who had increased the value of the house, and should be entitled to more.

How can Marco gain his 75,000 (+)

Marco can rely on remedies under:
1) Common law
2) The court of equity
3) S.24 Matrimonial Causes Act 1973

Common law/legal damages

1) Compensatory damages
2) Incidental damages
3) Consequential damages
4) Nominal damages
5) Liquidated damages
6) Punitive damages
However, it looks like none of these damages are really appropriate in
Marcos situation, because all of the above damages involve compensation
for the breach of a contract, while Marco and Alice did not have a contract
as such.

Instead Marco can rely on remedies under the court of

equity,
Which are

Equitable remedies
Decrees (an official order that has the force of law)
- The court can make a decree to state that Marco is a trustee of
the property.
Injunctions (to do or refrain form doing a specific act)
- This depends on what exactly Marco wants
Specific Performance (to perform a specific act)
- Pay out Marco the whole amount
Rectification (a change in a written document to reflect what is
ought to have said)
- Not applicable

Equitable remedies:
Equitable remedies are always discretionary (even if over the centuries
guidelines have been established). Getting a remedy under equity in usually
beneficial due to the idea of equity exists in personam meaning that the
courts will fashion their orders so as to affect the litigant much more directly
than any remedy devised under common law.
What this means for Marco?
Due to the courts adjusting the remedies based on the litigants
circumstances, Marco might be able to get not only the 50% of the house, he
might get the additional sum of having done the extensive works on the
house and building the conservatory.
However, while the fact that the remedies under equity are discretionary
which might benefit Marco due to his complicated imigrational
circumstances, it might not, at the same time benefit Marco if the courts
decide that he has not come with clean hands

Clean hands
Even if the claimant has proved his case, the courts under equity
may decide to deny any remedies on the grounds that he has not
come with clean hands, this may include anything from property
acquired fraudulently to making an inconsiderate contrast.
What this means for Marco?
Unfortunately, if the courts decide that Marco has not come with
clean hands due to him not having the permission of the
immigration authorities to stay in the UK at the time, and having
paid his share of the house form working illegally, he might not
be able to have his share of the house, even if proven his case
under (resulting trust, constructive trust)

 Marco and Alice have two children, the property in

question can be argued to be a family home, all bills
and expenses were shared equally and Marco and Alice
looked after the children equally. These facts make it
possible to presume that Marco and Alice were married.
Thus, if this is found to be the case, Marcos and Alices
problem could be resolved under Matrimonial Causes
Act 1973

s.24 Matrimonial Causes Act 1973

On granting a decree of divorce/nullity of marriage the courts may make the following
orders
1) Transferring the property to the other partner
2) An order for the sale of the property.
How this applies to Marco:
If the courts decide to order the sale of the property Marco could accumulate his
75,000
White v White (2001) this is a landmark case where the courts are instructed to
assume an equal split on the matrimonial assets on divorce.
However, due to this case this may also mean that Marco might not get the increased
share of the house (form building the conservatory and extensive ground works)

 If the courts do make such an order, Marco could end up with 75,000 instead of the
15,000 which Alice is currently offering.
However, when granting any orders under section 24 of the Matrimonial Act the courts
have to consider the guidelines set in section 25, which are:
1) Income
2) Earning capacity
3) Financial resources now and likely in the future
4) Duration of the marriage
5) Standard of living before the breakdown
6) Pensions and other rights

Plus when children are involved (such as in Marcos and Alices situation) the courts also
have to consider the following:
7) Financial means of the children
8) Any physical/mental disability of the child
9) The income, earning capacity (if any), property and other financial resources of the child
10)The manner in which he was being and in which the parties to the marriage expected
him to be educated or trained

Summary
1) Marco cannot rely on remedies under the common law
2) Marco can rely on equitable remedies if him and Alice
are not married. Under equity the courts might give a
discretionary remedy and make an injunction or a
specific performance against Alice, to find Marco as a
trustee, meaning he might be entitled to the 50 %,
providing that he has come with clean hands
3) If Marco and Alice are married, and a divorce is in
process, the courts may order the sale of the house
(which seems the most appropriate for Marco) under
the Matrimonial Causes Act 1973