LLB: ADULT RELATIONSHIPS Week 7:

Co-habitation – the
AND THE LAW law
Unit assessment

 100% coursework Format of question

 Critical analysis essay  Case analysis
 Brief released:  How does this lead to arguments
5th December for reform?
 Week 11: Assessment guidance  Analyse proposals for reform
and drop in  Reach reasoned conclusion

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Adult relationships and the law – key themes

 autonomy v protection

 certainty v flexibility/discretion

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The story so far….
 Marriage
 Divorce - the path to no-fault divorce
 Financial remedies- how can the Court divide assets?
How is judicial interpretation of the statute used to fairly
decide the division of assets? What are the limitations of
the law and what are the arguments for reform?

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Week 7 – Co-habitation – the law
What will we consider today?

1. The impact of society

2. Routes of legal redress
for cohabitants
3. Key case law
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ID: 195-718-333
POLL
 Anthony and Vicky have been living together for 25 years.
They have two children together, aged 11 and 15. They
have lived in the same house for the past 18 years which is
owned in Anthony’s name. Both Anthony and Vicky feel
that their relationship has become stale and they have
decided to go their separate ways. Vicky is worried about
how she will provide for the children when she is living on
her own.
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 POLL
Vicky need not worry as she is a “common law wife” given the length of her OPEN
relationship with Anthony

1. True
57.14%
2. False
37.50%

Sample Results
 Given that Vicky and Anthony have lived together for over 15 years the POLL
Court would use the principles of divorce law under the MCA 1973 to decide OPEN
the division of assets

1. True
42.86%
2. False
57.14%

Sample Results
 Given that Vicky and Anthony have children together the Court POLL
would use the principles of divorce law under the MCA 1973 to OPEN
decide the division of assets
1. True
50%
2. False
50%

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Sample Results
 POLL
OPEN
Vicky is entitled to a half share of the house

1. True
71.43%
2. False
28.57%

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Sample Results
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ONS Family and Households survey 2021 (published
March 2022)
 In 2021, there were 19.3 million families in the UK, which represents a
6.5% increase over the decade from 2011 to 2021.

 The number of families that include a couple in a legally registered

partnership in the UK has increased by 3.7% in the past decade, to 12.7
million; by comparison, the number of cohabiting couple families saw an
increase of 22.9% over the same period, to 3.6 million

 Co-habiting couple families are the fastest growing type of family

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How has society changed?

 Cultural and societal changes

 Role of women and their economic

contribution

 Attitudes to home ownership

 Socio economic factors - impact of

education and income.

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How does the law respond to these changes in
society?

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Co-habiting couples – the historical context
 The rights of family members in a home were decided by
the normal English laws of property
 Patriarchy
 Revolution of the Matrimonial Causes Act 1973 –but only
provided for married couples
 Civil Partnerships Act 2004

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Relationship breakdown –married or unmarried -
identical issues
 How will a property be divided?
 Who will any children live with?
 Will there be any on-going financial support for either
partner and the children?

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Different solutions
 Divorce/dissolution of civil partnership – statutory regime
to govern division of assets, permits
flexibility/discretion/fairness
 Cohabitation – no regime.
 Is there any cohabitation agreement in place? If not, strict
property rules apply.

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The myth of the “common law marriage”

 Is there a written agreement in

place?
 If not, strict laws of property
apply
 No right to property simply by
being part of a relationship

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Romance or mistaken belief?

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So what protection is there in the law for co-
habitees?
 Law of equity – fills the gaps of the common law
 The trust
i) Express trust
ii) Constructive trust
iii) Resulting
 Proprietary estoppel

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Broad interpretation of co-habitants

May extend to wider family

relationships, eg:
 Adult children living with
parents

 Elderly relatives

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Reminder - what is a trust?
Two different ways of owning property
i) legal
ii) equitable

“Trustee” – legal owner

“Beneficiary” – equitable interest

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Example
Shane and Tanisha live together in a house owned in Shane’s
sole name. The couple have lived together for 8 years.

Who is the legal owner of the property?

What sort of interest may Tanisha have in the property?

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The express trust
 Written declaration of interests in a property
 Set out in trust instrument
 Joint tenants v tenants in common
 Opportunity to state specific shares
 Ward LJ in Carlton v Goodman [2002]EWCA Civ 545
“Perhaps conveyancers do not always read the law reports. I will try one more time:
ALWAYS TRY TO AGREE ON AND THEN RECORD HOW THE BENEFICIAL INTEREST
IS TO BE HELD. It is not very difficult to do.”
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Constructive trusts
 Implied or “constructed” from factual circumstances
 Based upon “common intention” (as per statement of Lord
Diplock in Pettit v Pettit [1970] AC 777)
 Formed from settled principles identifying factual
circumstances where a trust dividing the ownership of the
property is deemed to have arisen

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How does the constructive trust create an interest
in property?
Law of Property Act 1925, s53

Subject to the provision hereinafter contained with respect to the creation of interests in land by parol—
(1)(a) no interest in land can be created or disposed of except by writing signed by the person creating or
conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of
law;
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some
writing signed by some person who is able to declare such trust or by his will;
(c)a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing
signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by
will.
(2)This section does not affect the creation or operation of resulting, implied or constructive trusts.

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Two key elements to establish a common
intention constructive trust
1. The co habitant who is the legal owner has said or done
something regarding ownership of the family home that makes
it inequitable to deny a beneficial interest in the property to the
non-legal owner.
2. The non-legal owner must have acted to their detriment, relying
on the words or deeds regarding ownership of the property to
acquire a beneficial interest

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Practically…
1. What evidence is needed to demonstrate a common
intention?
Words? Deeds?
2. What detriment has the non-owner experienced?
i.e. Contribution to purchase price? Funded renovation
work? Would looking after the children, or running the home
be sufficient?
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Clarification of the law
Key case: Lloyds Bank v Rosset [1991] 1 AC 107 (HL)
 Mr Rosset had inherited substantial sum of money from family trust fund, used money to purchase a house
for renovation. Bought in sole name of Mr Rosset.
 Cost of renovation work funded by Mr Rosset, however Mrs Rosset helped with the work
 Mrs Rosset claimed that she was entitled to a share of the property under constructive trust
 Key issue – did Mrs Rosset have a beneficial interest that could take priority to the interests of the
mortgage lender?
 First instance – held – no express agreement but judge inferred common intention for beneficial
ownership from the work Mrs Rosset had undertaken
 Court of Appeal – agreed that Mrs Rosset had acquired an interest in the home
 House of Lords – no such intention could be inferred from the work Mrs Rosset had done, in the absence
of an express common intention no constructive trust had arisen in Mrs Rosset’s favour.

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Lloyds Bank v Rosset – principles
Lord Bridge – two separate situations by which an interest could be acquired
by a co-habitant

1) Parties expressly agree to share the home. No financial contribution to

purchase price required by non-legal owner. Non–legal needs to act on
agreement and show form of detriment.
2) “Common intention” inferred purely from the conduct of the parties. In
this situation only something in nature of a financial contribution to the
purchase price would demonstrate detriment.

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How is “common intention” established?
“The courts cannot devise agreements which the parties never made. The
court cannot ascribe intentions which the parties in fact never had” Lord
Morris, Gissing v Gissing [1971]AC 886, 898

“The finding of an agreement or arrangement to share in this sense can only, I

think, be based on evidence of express discussions between the partners,
however imperfectly remembered and however imprecise their terms may have
been” Lord Bridge, Lloyds Bank v Rosset, para 132

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Practical example – Steve and Tony
Steve and Tony have been in a relationship for 12 years and have been living
together for the past 10 years. The property where they lived together is owned in
Tony’s sole name. The couple’s relationship has broken down and Steve has
moved out. Tony wishes to sell the house as he feels he has too many bad
memories of living there.

During the relationship Steve felt insecure at times, particularly about his interest
in the house as he paid Tony money every month towards the mortgage. Tony
would reassure him, saying “Don’t worry, this is our home, it is as much mine as
it is yours”.

Is Steve able to acquire an interest in the property?

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Practical example continued
Yes, likely he can

Steve has evidence of intention, and can show detrimental

reliance.

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How is “conduct” established?
 A claim will only be successful if there has been a direct
contribution to the purchase price, or a financial
contribution such as paying for substantial renovations

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Practical example revisited
– Steve and Tony
Same scenario – but this time no conversation during the relationship about
who owned the property.

What if Steve has not made a monthly payment towards the mortgage, but
paid for a new log burning stove in the property?

What about mortgage payments?

Curley v Parkes [2004] EWCA Civ 515

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What about other valid contributions to a household?

 Cooking, cleaning, food shopping?

 Childcare, caring for the sick and elderly?

Burns v Burns [1984] Ch317, 344

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If an interest in a property is established, how
can this interest be quantified?
Key case 2 – Stack v Dowden [2007] 2 AC 432
 Unmarried couple, co habiting for 25 years and had 4 children.
 Original family home purchased by Ms Dowden alone. Ms Dowden paid all of the
mortgage payments and Mr Stack undertook some improvements to the home. Couple
sold this property and bought a new property together in their joint names. Purchase
funded 65% from Ms Dowden (proceeds of sale of previous home and savings) and
remainder on mortgage.
 Relationship broke down and Mr Stack sought an order for sale and equal division of
the proceeds of sale.
 HL upheld the decision of Court of Appeal that the proceeds of sale be divided 65% to
Ms Dowden, 35% to Mr Stack.

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 Baroness Hale “This is not a case in which it can be said
that the parties pooled their separate resource…they
undertook separate responsibility for that part of the
expenditure which each had agreed to pay”. [90-91]

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Stack v Dowden factors
 Any advice or discussions at the time of transfer which cast light on their intentions
then;
 Reasons why the home was acquired in their joint names;
 Purpose for which home was acquired;
 The nature of the parties’ relationship;
 Whether they have children for whom they both had responsibility to provide a home,
 How the purchase was financed, initially and subsequently;
 How the parties arranged their finances, separately or together.
 How they discharged their outgoings/household expenses

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What was the significance of
Stack v Dowden?
 Common intentions can change over the course of a
relationship
 But left a question – how should the factors listed by Lady
Hale be applied to work out the shares of a beneficial
interest?

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Key case 3: Jones v Kernott [2011] UKSC 53
 Ms Jones and Mr Kernott were a co-habiting couple.
 Initially lived together in a mobile home purchased by Ms Jones. Mobile home was sold
and in 1985 the proceeds of sale used as a deposit for a house bought in joint names.
 Ms Jones paid the mortgage, Mr Kernott met most of the cost of an extension
 Couple had two children together.
 Mr Kernott moved out in 1993 and made no further contribution to the house or
children.
 Parties cashed in an insurance policy which Mr Kernott used as a down payment on a
property.
 In 2008 Mr Kernott claimed a half share in the family home.

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Jones v Kernott – the decision
 At first instance – Mr Kernott was given only a 10% share
of the home
 Court of Appeal – disagreed.
 Supreme Court – the parties could be said to have intended
to determine their respective entitlements in the home in
1993 when they separated – first instance decision upheld.

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The Court’s considerations
Lady Hale and Lord Walker – the court can only impute a
common intention where it is not possible to infer such from
the words of conduct of the parties. “fairness” [para 51]
Court will consider:
a) How did the parties intend to share the property?
b) If this cannot be determined on the facts, the court will decide on the
division based upon what is judged fair in the circumstances

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Where does this leave us?
 Uncertainty?
 Graham-York v York [2015] EWCA Civ 955
“in deciding in such a case what shares are fair, the court is
not concerned with some form of re distributive justice….it
does not enable the court to redistribute property in a
manner which right minded people might think amounts to
appropriate compensation” Tomlinson LJ

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Resulting trusts
 direct contribution to the purchase price, i.e. 10% contribution to purchase
price =10% beneficial interest in property
 Limitations:
 i) indirect contributions (i.e. childcare, running household) are unlikely to
be sufficient evidence
 ii) only contribution to purchase price counts, not a later contribution
 Iii) interest solely quantified by the contribution made

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Proprietary estoppel
 Alternative remedy in equity
 Would it be unfair for the owner to deny the cohabitant
rights in the family home?
 Claimant will have to demonstrate : representations,
detriment so that it would be unconscionable for a legal
entitlement not to be recognised in equity
 Overlap with constructive trusts
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Trusts of Land and Appointment of Trustees Act 1996
(TOLATA)

 Express or implied trust of the family home will be classed

as a trust of land under TOLATA
Purpose:
 stop the legal owner from selling the property – s14
 continue to occupy the property

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Factors for Court to consider under TOLATA
s15(1) the court has factors to consider, including:
 Intentions
 Purposes for which property is held
 Welfare of any minor
Limitations of TOLATA:
-if the relationship breaks down – does the purpose of the trust
continue?
-Welfare of children – high threshold to prove
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Schedule 1 Children Act
 Provides only route to transfer property between co
habitants
 Limited value – apply only for benefit of the children, not
the cohabitant themselves
 Time limited – when child reaches age of majority or
ceases full time education the property will revert to the
legal owner.

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Confused?!

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PADLET

What was most confusing about the topics

considered today?

What questions do I have about this topic,

or the unit generally?

https://manmetuni.padlet.org/nkelso2/
tfqarj6ysxb5cmka

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