Cohabitation Flashcards
What rights to financial remedies following a relationship breakdown are not available under MCA 1973
´ No right to seek maintenance
´ No Court redistribution, only court declaration of who owns what
´ For children: irrespective of formalities, The Child Support Act 1991 and the Children Act 1989 ensure provision for children.
´ At death no right of inheritance
´ A cohabitation contract will be given effect if the court thinks it is fair (following Radmacher)
´ No tax exemptions
´ Less favourable outcomes if no property rights held, following Domestic Violence
´ For unmarried fathers, there are further issues e.g. the potential lack of Parental Responsibility (PR).
What rights are available following a relationship breakdown
´ McFarlane [2006]: married woman gave up a successful career to care for children and be a home maker. Awarded half the marital capital and periodical payments when 16 yr. marriage ended.
´ Burns [1984] and Curan v Collins [2015]: in both cases of lengthy relationships could not be awarded anything despite home making, redecoration raising children.
´ However, increasingly courts have used equitable doctrines to establish outcomes similar to those following a breakdown of a marriage or CP.
Why is cohabitation financially risky
´ Sometimes called common-law partners, but this has of itself no legal meaning
´ The problem: if they have separate bank accounts, and one is incapacitated or dies, the other does not have legal access to their money or assets
´ See: Langton v Horton 1951 (older sisters and cousin) Ross v Collins 1964 (no familial nexus), but Watson v Lucas 1980 (heterosexual partnership), and Fitzpatrick v Sterling 2000.
What issues have the EUCHR raised with cohabitation
´ Gomez v Spain [1998] discrimination justifiable by the need to protect the traditional family.
´ RE P [2008] Treating Cohabs differently from M/CPs is discrimination under Art 14 ECHR. (HL)
´ Van der Heijden v Netherlands [2013] Marriage has a special status
´ McLaughlin (Northern Ireland) [2018] (SC) Disadvantage to families with children the same whether parents are or are not in a marriage or civil partnership.
What happened in the case of McLaughlin 2018
´ Partners cohabiting for 23 years with 4 children.
´ He died; NI had widowed parents benefit allowance, but not available for non-married women as not a ‘widow’.
´ She claimed discrimination engaging Art 14 & Art 8.
´ SC 4:1 agreed it was discriminatory. Issued declaration of incompatibility.
´ The benefit was not a reward for being married but to protect children of the deceased.
What are the main groups affected by cohabitation and the differences in benefits around this
´ Broad range of groups,
´ Non-Christian religious ceremonies (Akhter)
´ Marriages in non recognised jurisdictions see MM v NA (Declaration as to Marital Status) [2010]
´ Different sex cohabiting couples who hold the myth common law marriage.
´ Same sex - cohabitants
´ Cohabitants in non-sexual relationships
What does the ONS 2019 say about the popularity of cohabitation
´ Married and civil partner couple families remain the most common family type in 2019, representing two-thirds of all families (12.8 million).
´ Cohabiting couple families were the second-largest family type at 3.5 million (18.4%),
´ Followed by 2.9 million (14.9%) lone parent families.
Trends
´ In the UK over the last 10 years, the proportion of families containing a married or civil partnered couple decreased from 68.6% in 2009 to 66.8% in 2019.
´ Conversely the proportion of families containing a cohabiting couple increased from 15.3% to 18.4%.
´ This reflects the declining trend in the proportion of the population who are married and an increasing trend in the proportion cohabiting.
What are some of the legal issues with cohabitation
´ Financial ´ Parental rights ´ Property rights ´ Pension rights ´ Inheritance rights ´ Domestic violence protection
Who owns the family home in cohabitation cases
´ No automatic right of joint ownership.
´ Most valuable financial asset.
´ Stability and security essential for their survival.
´ Emotional importance too.
Disputes decided between family members-
What does the case of Pettit v Pettit 1970 tell us about cohabitation
´ No special rules apply to the ownership of family assets. Therefore, the Court must first establish who has legal ownership - joint tenants or tenants in common? Secondly, who has equitable or beneficial ownership.
´ Then also apply S 37 Matrimonial Proceedings and Property Act 1970.
What does s37 of the matrimonial proceedings and property act 1970 say about contribution to property in terms of money
It is hereby declared that where a husband or wife contributes in money or money’s worth to the improvement of real or personal property in which or in the proceeds of sale of which either or both of them has or have a beneficial interest, the husband or wife so contributing shall, if the contribution is of a substantial nature and subject to any agreement between them to the contrary express or implied, be treated as having then acquired by virtue of his or her contribution a share or an enlarged share, as the case may be, in that beneficial interest of such an extent as may have been then agreed or, in default of such agreement, as may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of the husband or wife arises (whether in proceedings between them or in any other proceedings).
What are the rules around joint tenants/tenants in common
´ If family home is conveyed to both partners as joint tenants, this provides each of them with a 100% legal and beneficial interest in the proceeds of sale.
´ if one party dies then their interest cannot be willed to a third party
´ the survivor automatically inherits
´ a joint mortgage is required, and both must agree to sell and the proceeds are split
´ If the conveyance declares they are to hold as tenants in common in equal shares or in some other proportion, then you each own a separate share of the property, which can be different in size.
´ each party could sell their own share
´ each party could have a separate mortgage for their share (not general)
´ to prevent issues: a Deed of Trust is required, stating how much money put into deposit, (if no cash, then regular contributions to mortgage may infer a common intention to benefit, see Gissing v Gissing 1971 following Pettit); and what is to happen if one dies, or the relationship breaks down or one can no longer contribute or you both wish to sell –
´ you both have to agree to sell
What does Lloyds Bank plc v Rosset 1991 tell us about constructive trust
´ Mr R had purchased a semi-derelict farmhouse using money provided by the trustees of a family trust.
´ Before the family moved into the property, Mrs R spent every day at the house for 4 months. She monitored the builders’ work; went to the builders’ merchants; obtained all the materials required for renovation and organised their delivery.
´ She helped plan all the renovations & decoration of the house. She also carried out a substantial part of the essential preparations prior to decoration taking place.
´ During this period, Mr R was abroad for most of the time,
´ Mrs R had total responsibility for the care of the children.
´ Without her knowledge, Mr R obtained a bank overdraft mortgaged FH to bank.
´ He got into financial difficulties being unable to make necessary repayments.
´ Bank took commenced proceedings to sell the property.
´ Mrs R claimed that she had a constructive trust interest in the property which bound the bank as an overriding interest under LRA 1925, s.70(1)(g) – now LRA 2002, Sch 3.
´ HL attempted to clarify the nature of the agreement or intention & relevant detriment which would give rise to a constructive trust.
´ Lord Bridge A constructive trust could be found if:
´ 1) There is a common intention to share ownership, and;
´ 2) The party seeking to establish the constructive trust has relied on the common intention to his or her detriment.
´ Lord Bridge – direct payment “whether initially or by payment of the mortgage instalments” will suffice but it is “extremely doubtful whether anything less will do.”
What are Lord Bridge’s two types of constructive trust agreements
´ Lord Bridge’s 2 types of agreement:
´ 1) Express agreement & detrimental reliance
´ 2) If not, infer common intention & reliance.
´ Lord Bridge explained that there were these 2 types of agreements which could give rise to a constructive trust:
´ No 1 required court to ask a question & the court then to consider the response:
´ Only direct financial contributions by the claimant referable to the property purchase tick both boxes, per Lord Bridge. Nothing else sufficient: see Gissing v Gissing, 1971
´ Second type of agreement is:
´ “in sharp contrast with situation is the very different 1 where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, & where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially & as the conduct relied on to give rise to a constructive trust.”
What are the 3 ways of establishing common intention
ways of establishing such common intention:
´ If the property is registered in the joint names of both parties
´ ‘Any agreement, arrangement or understanding reached between them that the property is to be shared beneficially.’
´ A common intent can be inferred from a direct contribution to the purchase price or mortgage instalment.
´ As there was none it was said this narrow approach set back women’s property claims by 50 years… left to others to develop the law…