Cohabitation

Question 1

What rights to financial remedies following a relationship breakdown are not available under MCA 1973

Answer 1

´ 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).

Question 2

What rights are available following a relationship breakdown

Answer 2

´ 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.

Question 3

Why is cohabitation financially risky

Answer 3

´ 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.

Question 4

What issues have the EUCHR raised with cohabitation

Answer 4

´ 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.

Question 5

What happened in the case of McLaughlin 2018

Answer 5

´ 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.

Question 6

What are the main groups affected by cohabitation and the differences in benefits around this

Answer 6

´ 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

Question 7

What does the ONS 2019 say about the popularity of cohabitation

Answer 7

´ 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.

Question 8

What are some of the legal issues with cohabitation

Answer 8

´	Financial
´	Parental rights
´	Property rights
´	Pension rights
´	Inheritance rights
´	Domestic violence protection

Question 9

Who owns the family home in cohabitation cases

Answer 9

´ 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-

Question 10

What does the case of Pettit v Pettit 1970 tell us about cohabitation

Answer 10

´ 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.

Question 11

What does s37 of the matrimonial proceedings and property act 1970 say about contribution to property in terms of money

Answer 11

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).

Question 12

What are the rules around joint tenants/tenants in common

Answer 12

´ 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

Question 13

What does Lloyds Bank plc v Rosset 1991 tell us about constructive trust

Answer 13

´ 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.”

Question 14

What are Lord Bridge’s two types of constructive trust agreements

Answer 14

´ 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.”

Question 15

What are the 3 ways of establishing common intention

Answer 15

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…

Question 16

What are the key takeaways in the case of Stack 2007

Answer 16

Lady Hale- ‘…the starting point where there is joint legal ownership is joint beneficial ownership.
´ The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership.’
´ the starting point in a joint names case is that the parties hold a joint and equal beneficial interest, but this may be rebutted by suitable evidence.
´ In a sole name case, the question will be to determine precisely how large a share the claimant holds.
Any division must be on trust principles, equity follows the law unless evidence of common intention.´ Where legal title is in joint names, the onus is on party wishing to claim a greater than equal division to produce evidence of a contrary intention than that of legal title.

Question 17

Why is context important in cohabiting and property cases

Answer 17

´ Each case will turn on its own facts.
´ Many more factors than financial contributions may be relevant to divining parties’ true intentions. These include:
´ any advice or discussions at the time of the transfer which cast light upon their intentions then;
´ the reasons why the home was acquired in their joint names…the purpose for which the home was acquired;
´ the nature of the parties’ relationship;
´ whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently;
´ how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property & their other household expenses.

Question 18

What does Jones v Kernott 2011 say about intentions

Answer 18

´ Lady Hale at [31] the search is ‘primarily to ascertain the parties’ actual shared intentions’
´ Can be expressed or inferred from parties’ conduct (this should be the primary search)
´ Or the court can impute intention- in cases where no evidence courts can make an educated guess about what the party’s intentions were (last resort)
´ Lord Kerr: ‘As soon as it is clear that inferring an intention is not possible, the focus of the court’s attention should be squarely on what is fair and, as I have said, that is an obviously different examination than is involved in deciding what the parties actually intended’ [75]
´ Not exercising any discretion but to gauge what the parties might have been agreeing to.

Question 19

Summarise constructive trusts

Answer 19

´ No financial contribution.
´ Explicit implied agreement or intention to share beneficial interest & detriment suffered in reliance.
´ Many familial partners do not make a financial contribution to FH at its time of purchase. May not have money to do so or they move in with a partner who already owns his home.
´ Later in relationship they may make payments towards mortgage payments, or make a practical contribution, for example renovating or maintaining property.
´ Could then claim constructive trust created.

Question 20

How is a constructive trust established

Answer 20

Evidence of an explicit/implied agreement to share in beneficial interest of the property

Question 21

What is an informal trust and what does it do

Answer 21

´ Law of Property (Miscellaneous Provisions) Act 1989 s2 requires all transfers of property to be in writing.
´ But Trusts don’t have to be in writing: Law of Property Act 1925, s.53(2) (Equitable interests – s.12 & s.14 TLATA 1996 apply).
´ Prevail over third-party rights of buyers or lenders.
´ If a trust established, the claimant acquires a proprietary right in the property.
´ May allow him/her to stay living in the FH
´ or could give a right to ask the court for:
´ a sale or delay of sale of the FH, and
´ entitlement to a share of the proceeds of sale

Question 22

What happens in the first situation of a resulting trust

Answer 22

´ Property in 1 party’s sole name (usually the man) & other makes financial contribution (the woman).
´ Beneficial interest follows according to financial contribution: can be the initial deposit; mortgage payments; legal fees, or the transfer of a council house discount.
´ A Right arises at time of purchase. Rebuttable presumption that, in the absence of evidence to the contrary, the parties expect to share the beneficial interest in the property in proportion to their financial contributions.
´ Presumption is based on the materialistic view that no one would make a financial contribution to another person’s property without expecting something in return! But so many people do not!

Question 23

What happens in a second situation of a resulting trust

Answer 23

´	Property in both parties’ names.
´	No declaration of trust.
´	Rebuttable presumption.
´	Right arises at time of purchase.
´	If property is held in joint names, and there is no explicit declaration setting out the respective beneficial interests, then there is a rebuttable presumption that the beneficial interest follows the legal interest, and the property will be held in equal shares.

Question 24

What is alternative proprietary

Answer 24

´ Last resort!
´ For A to establish a proprietary estoppel claim over B’s property it is necessary to show:
´ 1. A reasonably believes she has or is going to be given an interest over B’s property;
´ 2. A must act reasonably in reliance on this belief; and
´ 3. It must be conscionable (fair) in all the circumstances to give A a remedy

Question 25

What happened in Thorner v Major 2009

Answer 25

´ Thorner had worked on a cousin’s farm for 29 years without pay.
´ Some statements were made which led Thorner to believe the cousin would leave him the farm in his will
´ The cousin did make a will leaving the farm to Thorner but revoked the will after falling out with another legatee
´ No other will made.
´ Under rules of intestacy the farm passed to the cousin’s siblings
´ Thorner argued that the farm was his.
´ 1st instance- found that the vague comments were sufficient for a proprietary estoppel
´ CA allowed appeal, principally on the basis that the statements were not promises and had not been relied on by Thorner
´ HL held – to establish a proprietary estoppel, the assurance had to be ‘clear enough’ .
´ Whether the assurance was clear depended on the context of the words or actions
´ The judge accepted the claimant’s work and conduct of the cousin as creating an estoppel
´ What the cousin actually intended was not relevant.
´ Focus was on Thorner’s reasonable interpretation of what was said
´ Reasonable person not relevant.
´ Question was whether it was reasonable for Thorner to rely on it

Question 26

What did the Law commission say around the idea of cohabitation in 2002

Answer 26

´ In 2002, Law Commission produced a discussion paper on sharing homes (Law Com No 278)
´ Took a broadly contribution-based approach to disputes, suggested default system
´ But no legislation produced
´ See Baroness Hale writing in 2004, excerpted in Herring.
´ Another scheme suggested in 2006-7.
´ not adopted by the government, although Scotland legislated for a compensation-based scheme in 2006

Question 27

What did the law commission say in 2007

Answer 27

´ Found that many cohabitants suffer hardship at the end of a relationship, which had serious consequences for them and children and led to greater reliance on state benefits.
´ Recommended that cohabitants should be given financial relief at the end of a relationship in order to “…provide economically vulnerable members of society with private means to rebuild their lives and to ensure that the pluses and minuses of the relationship were fairly shared between the couple.”
´ It wouldn’t apply to all cohabitants but only to those who could bring themselves within the following four rules.

Question 28

What are the LC four rules

Answer 28

´ 1.Couple would agree not to opt out of scheme;
´ 2.Applicant would need to have made contributions to relationship which gave rise to consequences which were on-going at the end of that relationship, either in form of a benefit to the respondent or an economic disadvantage to applicant;
´ 3.Cohabitants must have had a child together or had lived together for a specified number of years.
´ 4.The Commission made no specific recommendation about time but suggested a period between 2 & 5 years might be regarded as appropriate.
´ 5.The decision & amount of any financial award would be at court’s discretion.
´ (Never implemented).

Question 29

What is the cohabitating rights bill

Answer 29

´ Largely based on Resolution proposals.
´ (1)This Act establishes a framework of rights and responsibilities for cohabitants with a view to providing basic protections—
´ (a) in the event of their ceasing to live together as a couple for a reason other than death,
´ (b) in the event of the death of one of them, and
´ (c) for the purpose of enabling the life of either of them to be insured by or for the benefit of the other or for the benefit of a relevant child.
´ No progress; government so far declined to adopt it – no current appetite or government resources for reform?