Kirishani v Major: cohabiting couples and the intention to create legal relations

The High Court has dismissed an appeal in Kalaivani Jaipal Kirishani v George Major [2026] EWHC 835 (Ch), a case that required Sir Anthony Mann to examine whether the presumption against an intention to create legal relations — long established in the context of marriage — extends to cohabiting couples. His answer was nuanced: the label matters less than the nature of the relationship itself.

The background concerned claims by Ms Kirishani against her former cohabitee Mr Major following the breakdown of their relationship in October 2018. The two principal claims on appeal were for approximately £20,000 in shared holiday and household expenses ("the Expenses Claim") and £16,000 in unpaid contributions to her property ("the Rent Claim"). HHJ Gerald had dismissed both at first instance, finding that the parties had never intended their financial arrangements to be legally binding. Ms Kirishani appealed.

A procedural point emerged early. The trial judge had proceeded on the apparent basis that both parties accepted the domestic arrangements presumption applied to cohabitees. They did not. Counsel for Ms Kirishani had expressly argued in skeleton submissions below that "there is no special rule or presumption for agreements between cohabitees." Sir Anthony Mann accepted that the judge had been wrong to treat this as common ground — but that error ultimately made no difference to the outcome.

The more substantive question was whether the presumption recognised in Balfour v Balfour [1919] and Jones v Padavatton [1969] can apply to unmarried cohabitees at all. Sir Anthony Mann concluded that it can, but declined to extend it automatically to all such relationships. The reasoning turned on characteristics rather than status. The presumption, he held, derives from "experience of life and human nature" and applies where a relationship is governed by mutual trust and affection rather than commercial consideration. Marriages and civil partnerships typically share those features; cohabitation does not do so uniformly. At one end sits something functionally indistinguishable from marriage; at the other, a purely convenient domestic arrangement between flatmates. To attach the presumption to the word "cohabitees" without more would lack the necessary analytical clarity.

Applying that framework, Sir Anthony Mann found that the trial judge had — correctly, if imprecisely — assessed the specific relationship before him. The parties had hoped for marriage and children; the claimant had knowingly subsidised the defendant throughout; neither had ever suggested during the relationship that failure to pay would be a "deal-breaker" or trigger litigation. The spreadsheets Ms Kirishani circulated were unaccompanied by demands for payment. Mr Major had voluntarily added the rent arrears to those same spreadsheets and offered to repay by April 2019 — conduct the judge interpreted as acknowledging an obligation in honour rather than in law. These findings collectively justified the application of the presumption to this particular cohabitation.

On the standard of evidence required to rebut the presumption, Sir Anthony Mann agreed that the trial judge's more emphatic formulations — requiring "the clearest of evidence" — might, read in isolation, have set the bar too high. The correct position is that flimsy evidence will not suffice, but no specially elevated threshold applies. Read in context, and given that the judgement was delivered ex tempore, those passages did not disclose a fundamentally wrong approach. The reasoning in paragraph 24 — requiring "clear evidence" — was unimpeachable.

The failure-of-reasons ground fared no better. Although the judgement's analytical section made express reference only to the Expenses Claim, Sir Anthony Mann was satisfied that the reasoning extended implicitly to the Rent Claim. The heading to the relevant section referred to both; the opening conclusion at paragraph 24 referred to both; and the discussion of the spreadsheets implicitly engaged with the rent arrears Mr Major had himself entered into them. The two claims were treated as flowing from a single assessment of the relationship.

The appeal was dismissed. The case confirms that the domestic arrangements presumption is not confined to married couples, but that its application to cohabitees is necessarily fact-specific. It will arise where the relationship demonstrates the characteristics — mutual trust, affection, an absence of commercial rigour — that have always underpinned the principle. Cohabitation alone is neither a trigger nor a bar.