Ignore the 'moralists'

Cohabitation has risen
by nearly 30 per cent
in the UK in the last
ten years. Scotland has sound cohabitation law, but despite recommendations of the Law Commission for the introduction of modest compensatory legislation to the rest of the
UK, two successive governments have parked it, treating the subject as a hot potato.

Why is there such paralysis in providing qualifying cohabitants a remedy for economic loss as a consequence of cohabitation?

In power, no party appears prepared to grasp the nettle and stand up to moralists in the press and the House of Lords who wrongly fear the institution of marriage will be doomed. Instead, they prefer to leave the populace reliant on expensive and complicated chancery law harking back to the Victorian era.

Take Graham-York v York (Personal Representative of the Estate of Norton Brian York) and another, in the Court of Appeal,
as an example.

Miss Graham-York lived with her partner, Norton York, for 33 years in a home registered in his sole name. On Norton's death,
his estate was represented by
his estranged son. The house
was mortgaged with substantial arrears and the building society started legal proceedings on the debt. The son, as sole defendant, did not contest the claim and was ordered to hand the house over to the building society.

Graham-York, who still lived in the house, initiated a third-party claim against the son, stating she had a beneficial interest in the property. The claim arose from the common intention of her and her late partner and, as she was
in possession of the property,
she also maintained she took precedence over the building society's claim for the mortgage she was not a party to.

The court at first instance determined she had a beneficial interest valued at 25 per cent after the deduction of mortgage arrears and costs by the building society.

She appealed, submitting
that the judge had erred in not awarding her half the value of the property and that it should be paid before the building society was allocated its share of the sale proceeds. The argument rested on the value of her contributions over the years, financial and non-financial.

The appeal was dismissed, with Lord Justice Tomlinson saying that there was no starting point of equality of interest when a property had been purchased in one person's sole name, even if the purchase had been made with a significant contribution from another party.

Although outside the scope
of appeal, the judgment also pointed out that separate proceedings were taking place regarding outstanding disputes on one or more wills of the deceased, and that Graham-York had made an application under the Inheritance (Provision
for Family and Dependants)
Act 1975.

True, it might all have been avoided had the deceased made his intentions much clearer when he was alive. It underscores the general need for cohabitants to ensure there is an up-to-date will with perhaps a letter explaining the testator's instructions.

These complicated property arguments, devised by fiendish chancery lawyers, are incomprehensible to the layman and most lawyers unless they regularly deal with them. This is just one case where cohabitation litigation has ensued simply by trying to fit into the wrong shoe.

Cohabitation is a societal norm, not an anomaly. While the next government might take note, I won't be holding my breath. SJ

Marilyn Stowe is senior partner at Stowe Family Law

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