Family Law – The Cohabiting Family
Civil Partnership Act 2004 – deals with issues with same sex and opposite sex couples.
Not treated in the same way as married partners: no right to maintenance, no entitlement to
inherit from deceased partner unless can establish history of maintenance, unmarried
fathers need to take steps to get PR, no special tax benefits.
Treated the same as married couples: welfare benefits, children, child arrangement orders.
One party contributing more to purchase of home, how to protect themselves: draw up a
will, a cohabitation agreement, a declaration of trust for the property.
Property – family home
Jointly owned
The property could be in joint names with an express declaration of trust. S53(1)(b) Law of
Property Act 1925 – declaration must be in writing signed by the buyers. This will generally
be conclusive evidence as to ownership (Pettit v Pettit). Declaration contained in the
purchase deed or on a separate deed.
- Advantage: important matters can be dealt with eg division of outgoings for repairs,
insurance, provision giving one party option to buy the other’s share.
Joint tenants – either can apply to court for an order of sale under s14 TLATA 1996 and
proceeds divided equally.
Tenants in common – presumed equal shares unless the contrary can be proved – Stack v
Dowden: court will look at many factors as well as financial contributions the parties made,
what the parties’ intentions had been.
Jones v Kernott (court had to ascertain what shares the parties intended by direct evidence
or inference or what courts entitled fair).
One partner buy out the other: prior permission of any lender must first be sought. Transfer
liable to SDLT.
Legal estate in one name only
The other party will need to establish a claim in equity.
… By establishing a resulting or constructive trust or under the doctrine of proprietary
estoppel.
Resulting trusts: direct contribution to the purchase price by the partner who is not the legal
owner. Curley v Parkes – contribution must be made at the time of purchase.
Constructive trusts: common intention to share ownership and that the claimant acted in
reliance on this to their detriment (Lloyds Bank Plc v Rosset).
- H v M – “don’t worry about the future because when we are married it will be half yours
anyway and I’ll always look after you and the boy”, man also made excuse property was in his
name for tax reasons – court held this was a constructive trust, statement made was an
express common intention and woman had acted on this to her detriment.
- Lloyds Bank Plc v Rosset – Lord Bridge: conduct such as payment of mortgage instalments
and financial contributions to improvements to the property can be used to infer the
common intention to share the property.
- Burns v Burns – contributions to household expenses or carrying out role of wife and mother
does not infer the necessary common intention when house was in man’s name.
Determining the size of the share: Jones v Kernott – what court considers fair having regard
to the whole course of dealing between them in relation to the property.
Proprietary estoppel: 3 elements required – an assurance of an interest in the property,
reliance on that assurance, detriment suffered as a result. Where it would be unconscionable
to deny the claimant relief.
For the child: schedule 1 CA 1989 – court have regard to all the circumstances of the case. Re
P. if parent successful in order for child, they would have license to occupy home or similar
, property, and when child reaches certain age provision ends and property transfers back to
other parent.
Schedule 1(2) CA 1989 orders that can be made = periodical payments, lump sum, transfer of
property. Court takes into account – income, earning capacity, other finances. Link to Q.
Protecting a non-legal owner:
A) Contractual licence – party will have to show there was an intention to create legal relations,
offer and acceptance and consideration. Tanner v Tanner – women gave up rent-controlled
flat to occupy man’s house with their children. Court found a licence for her to occupy the
property did exist, which would last until the children grew up.
B) Licence by estoppel – rights of occupation rather than ownership. Greasley v Cooke – maid,
cohabited with son of family for 30 years, looked after children, equity had been raised to
allow her to live in property for as long as she wished.
C) Family Law Act 1996, Part IV – unmarried partner obtain order under FLA to protect
themselves and any children living with them from further violence from their partner, or
order to remove their partner from the home.
D) CA 1989, s15 and schedule 1 – parent applies on behalf of the child for financial orders from
the other parent, incl. property adjustment order or settlement. J v J (A Minor: Property
Transfer) – non-owning partner looking after the child would be able to occupy property as
they are looking after child.
Tenancies
If tenancy in one name, the other partner has no protection and can be evicted.
Schedule 7 FLA 1996 – some circumstances a cohabitant can obtain a tenancy transfer order.
Only available where tenancy of dwelling house that couple occupied together as spouses.
Court have regard to all the circumstances of the case, eg how tenancy granted and how
either party became tenant, suitability of parties as tenants.
Life insurance/Wills
Covers each party against financial consequences of the death of the other.
Couples must show mutual financial support.
Solicitor acting on a house purchase can explain the problems to cohabitants if one dies and
encourage the buyers to make a will.
A cohabitee does not benefit under the intestacy rules.
Cohabitation agreements
Arrangements that will apply whilst couple is living together and rights on breakdown of
relationship.
Not yet a modern decision on validity of such agreements. But, Sutton v Mischon De Reya
and Gower & Co – court said nothing contrary to public policy in a cohabitation agreement.
Avoid challenge on ground of illegality on grounds of public policy – enter into agreement
after, rather than before, the couple have started living together.
Undue influence: if agreement unduly favourable to one party and that party cannot show
that it was entered into freely or following independent legal advice (Zamet and Others v
Hyman and Another). The Law Society’s Family Law Protocol (para 11.2.4) – solicitors should
not act for both parties in drawing up a cohabitation agreement.
There must be an intention to create legal relations.
Agreement must be certain. Failure of consideration can be avoided by making the
agreement a deed.
Matters to be covered in cohabitation agreement: ownership of real and personal property,
finances, children, other matters that aren’t too trivial.
Civil Partnership Act 2004 – deals with issues with same sex and opposite sex couples.
Not treated in the same way as married partners: no right to maintenance, no entitlement to
inherit from deceased partner unless can establish history of maintenance, unmarried
fathers need to take steps to get PR, no special tax benefits.
Treated the same as married couples: welfare benefits, children, child arrangement orders.
One party contributing more to purchase of home, how to protect themselves: draw up a
will, a cohabitation agreement, a declaration of trust for the property.
Property – family home
Jointly owned
The property could be in joint names with an express declaration of trust. S53(1)(b) Law of
Property Act 1925 – declaration must be in writing signed by the buyers. This will generally
be conclusive evidence as to ownership (Pettit v Pettit). Declaration contained in the
purchase deed or on a separate deed.
- Advantage: important matters can be dealt with eg division of outgoings for repairs,
insurance, provision giving one party option to buy the other’s share.
Joint tenants – either can apply to court for an order of sale under s14 TLATA 1996 and
proceeds divided equally.
Tenants in common – presumed equal shares unless the contrary can be proved – Stack v
Dowden: court will look at many factors as well as financial contributions the parties made,
what the parties’ intentions had been.
Jones v Kernott (court had to ascertain what shares the parties intended by direct evidence
or inference or what courts entitled fair).
One partner buy out the other: prior permission of any lender must first be sought. Transfer
liable to SDLT.
Legal estate in one name only
The other party will need to establish a claim in equity.
… By establishing a resulting or constructive trust or under the doctrine of proprietary
estoppel.
Resulting trusts: direct contribution to the purchase price by the partner who is not the legal
owner. Curley v Parkes – contribution must be made at the time of purchase.
Constructive trusts: common intention to share ownership and that the claimant acted in
reliance on this to their detriment (Lloyds Bank Plc v Rosset).
- H v M – “don’t worry about the future because when we are married it will be half yours
anyway and I’ll always look after you and the boy”, man also made excuse property was in his
name for tax reasons – court held this was a constructive trust, statement made was an
express common intention and woman had acted on this to her detriment.
- Lloyds Bank Plc v Rosset – Lord Bridge: conduct such as payment of mortgage instalments
and financial contributions to improvements to the property can be used to infer the
common intention to share the property.
- Burns v Burns – contributions to household expenses or carrying out role of wife and mother
does not infer the necessary common intention when house was in man’s name.
Determining the size of the share: Jones v Kernott – what court considers fair having regard
to the whole course of dealing between them in relation to the property.
Proprietary estoppel: 3 elements required – an assurance of an interest in the property,
reliance on that assurance, detriment suffered as a result. Where it would be unconscionable
to deny the claimant relief.
For the child: schedule 1 CA 1989 – court have regard to all the circumstances of the case. Re
P. if parent successful in order for child, they would have license to occupy home or similar
, property, and when child reaches certain age provision ends and property transfers back to
other parent.
Schedule 1(2) CA 1989 orders that can be made = periodical payments, lump sum, transfer of
property. Court takes into account – income, earning capacity, other finances. Link to Q.
Protecting a non-legal owner:
A) Contractual licence – party will have to show there was an intention to create legal relations,
offer and acceptance and consideration. Tanner v Tanner – women gave up rent-controlled
flat to occupy man’s house with their children. Court found a licence for her to occupy the
property did exist, which would last until the children grew up.
B) Licence by estoppel – rights of occupation rather than ownership. Greasley v Cooke – maid,
cohabited with son of family for 30 years, looked after children, equity had been raised to
allow her to live in property for as long as she wished.
C) Family Law Act 1996, Part IV – unmarried partner obtain order under FLA to protect
themselves and any children living with them from further violence from their partner, or
order to remove their partner from the home.
D) CA 1989, s15 and schedule 1 – parent applies on behalf of the child for financial orders from
the other parent, incl. property adjustment order or settlement. J v J (A Minor: Property
Transfer) – non-owning partner looking after the child would be able to occupy property as
they are looking after child.
Tenancies
If tenancy in one name, the other partner has no protection and can be evicted.
Schedule 7 FLA 1996 – some circumstances a cohabitant can obtain a tenancy transfer order.
Only available where tenancy of dwelling house that couple occupied together as spouses.
Court have regard to all the circumstances of the case, eg how tenancy granted and how
either party became tenant, suitability of parties as tenants.
Life insurance/Wills
Covers each party against financial consequences of the death of the other.
Couples must show mutual financial support.
Solicitor acting on a house purchase can explain the problems to cohabitants if one dies and
encourage the buyers to make a will.
A cohabitee does not benefit under the intestacy rules.
Cohabitation agreements
Arrangements that will apply whilst couple is living together and rights on breakdown of
relationship.
Not yet a modern decision on validity of such agreements. But, Sutton v Mischon De Reya
and Gower & Co – court said nothing contrary to public policy in a cohabitation agreement.
Avoid challenge on ground of illegality on grounds of public policy – enter into agreement
after, rather than before, the couple have started living together.
Undue influence: if agreement unduly favourable to one party and that party cannot show
that it was entered into freely or following independent legal advice (Zamet and Others v
Hyman and Another). The Law Society’s Family Law Protocol (para 11.2.4) – solicitors should
not act for both parties in drawing up a cohabitation agreement.
There must be an intention to create legal relations.
Agreement must be certain. Failure of consideration can be avoided by making the
agreement a deed.
Matters to be covered in cohabitation agreement: ownership of real and personal property,
finances, children, other matters that aren’t too trivial.
