Sorting out the aftermath

Consider this scenario. The parties cohabited and the relationship may have been purely domestic (as is most common). They have also done well and acquired investments, such as a valuable vehicle, a boat, shares, or buy-to-let properties or art.

They may even have been particularly concerned with acquiring investments. The matrimonial home – or cohabitation home – was acquired in their joint names.

Common intention

But the relationship has now broken down and the issue concerns ownership and distribution of property and money. The judge must look for the common intention of the parties. They may have had a common intention. But they may not. 

They were young and in love and everything was fine. They knew no law. They never even considered a possible break-up. The property was conveyed into their joint ownership (perhaps the solicitor so advised – or it was just done that way – or perhaps the mortgagee so required). The judge may find an actual intention or may have to infer or impute an intention. 

Intention can be ascertained from the words of the parties, the documents, the conduct of the parties, even perhaps their character and personality. Everything has to be set in context – which is inevitably personal. And over the years, intention may change from what it was at the beginning of the relationship to what it has become on the break-up. 

In the absence of statutory law to govern the distribution or redistribution of the property and money on the break-up of a cohabitation the judge, having ascertained the facts, has to fall back on presumptions, not all of which may be consistent or compatible. 

In a domestic relationship, a starting point – a prima facie prescription – can be that where there is joint legal ownership there is likely to be joint beneficial ownership. The parties could have gone for separate beneficial ownership, eg tenancy in common, but they did not do so.

In cohabitation as in marriage, there is a presumption of an intention to share. But there may be evidence to the contrary, for instance, where they always kept separate bank accounts and kept their own property separate. They may have shared the provision of the family’s basic needs but otherwise kept their property and money for themselves.

Or they may have wished in due course to recover their own original contributions and to share the surplus. Or the judge may be able to infer or impute a common intention to allocate the property and money in a personal and particular way. 

Equality

In modern contemporary times there is the presumption of equality between man and woman under the Equality Act 2010. He may earn the money but she may look after the children and run the home – an equally valuable contribution. Furthermore, today she also often earns money which goes into the family. But the needs of the children will always take a high priority.

Then there is the presumption that where parties contribute to a relationship in unequal portions, they intended a resulting trust. They expected that they would retain or recover in the same portions; and this would apply especially in commercial relationships. 

Then there are the historical principles: equity tempers the harshness of the common law; the law follows equity; equity expects fairness and proportionality; equity favours equality.

All these presumptions are rebuttable and no single presumption is more powerful than another. No one presumption prevails in principle, though may do so in any particular situation. Furthermore, ‘he who asserts must prove’.

The case law is to be found in Stack v Dowden [2007] UKHL 17 (paras 41-70 Lady Hale); Jones v Kernott [2011] UKSC 53 (paras 1-36; 51 Lord Walker and Lady Hale); and in Marr v Collie [2017] UKPC 17 (paras 36-59 Lord Kerr). 

In Stack, Lady Hale gave a useful non-exhaustive list of likely relevant factors in the domestic situation:

• How they raised the money.
• How they managed the money.
• Who paid the mortgage.
• Who paid the outgoings.
• Whether there was a mercenary element in the relationship (more likely in a commercial relationship and in a cohabitation than a domestic marriage).
• What was said and written at the beginning.
• What were the parties’ reasons for doing what they did.
• Were there children.
• What the nature of the relationship was.
• What sort of character and personality the parties have. 

In Langford v Secretary of State for Defence [2019] EWCA Civ 1271, the surviving cohabitee of a deceased military officer claimed survivor’s benefit (a sort of widow’s pension). For 15 years the parties had been in a substantial, stable, exclusive, dependent relationship. Not to award her the benefit would be discriminatory and unlawful.

The new dimension

Back in 2009, Lady Deech advocated leaving the law as it is, for people to choose the relationship they prefer. Lady Hale (the family law commissioner at one time) thought that the solution must lie with the judges rather than statutory law. In July 2007, the Law Commission published Cohabitation: The Financial Consequences Of Relationship Breakdown; and in August 2019, a House of Commons briefing paper, Common Law Marriage And Cohabitation, was published summarising the current position. 

For now, in practice the parties are urged to settle or mediate before embarking upon litigation. The court fees and absence of legal aid act as a deterrent to contentious litigation. The judges also seem to have been thrashing around trying to find the right approach. Searching for a common intention is somewhat artificial, because so often the parties were and are unclear in their intention (if, indeed, they ever had an intention). 

Over the years, the judges have striven to give the cohabitee, particularly the female cohabitee, as many of the rights and privileges and benefits of a married woman. They have done this by taking an indulgent view of the facts and a generous interpretation of the relevant law – principally the Human Rights Act 1998 and particularly the prohibition of discrimination (see R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32).

With the extension of civil partnership to people of the opposite sex, a legal civil relationship similar to but different from marriage – partners rather than spouses – the judge will apply matrimonial law, property and financial arrangements rules (instead of property, contract and equity law) to those who decide to enter into a civil partnership. 

Thus the judge in future will be justified in applying matrimonial law to civil partnerships in the normal way, instead of having to strive in applying some sort of contorted property law. The corollary must be that there is now less need to strive to help those who did not take up the opportunity for a civil partnership. The judge can simply apply the old property law without the need to bend property law into matrimonial law. 

The Law Society should give guidance on these issues; and individual solicitors should explain the situation to the clients, especially the ‘matrimonial’ advantages available to the parties on break-up if they have entered a civil partnership. Otherwise, the potential harshness of property law, with all its archaic and arcane presumptions, may not be to the liking of either or both of the parties on break-up. 

Cohabitees surviving the death of a partner or facing a relationship breakdown can run into a lot of difficulty. The aftermath of a civil partnership will be much easier to sort out.
  
Alec Samuels is a barrister