Cohabitation: The Financial Consequences of Relationship Breakdown [2006] EWLC 179(3) (04 May 2006)

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You are here: BAILII >> Databases >> The Law Commission >> Cohabitation: The Financial Consequences of Relationship Breakdown [2006] EWLC 179(3) (04 May 2006)
URL: http://www.bailii.org/ew/other/EWLC/2006/179(3).html
Cite as: [2006] EWLC 179(3)

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PART 3

THE CURRENT LAW

INTRODUCTION

3.1

It is worth beginning with a clear statement of what the current law does not provide. There is a widespread belief that English law recognises cohabitants as "common law spouses" once they have lived together for some period of time

^[1]

^[2]

^[3]

^[4]

^[5]

^[6]

In some legal contexts, it is true that a period of cohabitation can give rise to treatment analogous to that of married couples.

^[7]

On the dissolution of marriage and civil partnership, the courts have a wide-ranging discretion to adjust the couple's property and finances in accordance with what they judge to be a fair outcome in all the circumstances.

^[8]

^[9]

^[10]

In cases where one partner dies, the question of who owns what remains important, as it is necessary to identify what property falls within the deceased's estate: the general law discussed below for ascertaining ownership is therefore as relevant in death cases as it is on separation. However, there is also an adjustive statutory remedy available to the surviving cohabitant which is far more substantial than any of the remedies currently available between cohabitants on separation. The survivor will often be eligible to make an application to court to seek reasonable financial provision where the deceased's will or the intestacy rules do not adequately cater for the survivor's maintenance.

3.5

In this Part, we set out the current law governing the distribution of cohabitants' property and finances on separation and death, focusing particularly on ownership of the home. First, we explain how the parties may seek to regulate their property relationship by means of express trust or contract. We then consider how the question of beneficial entitlement to property is determined where no express declaration of trust has been made. We go on to explain the current statutory remedies that may be applicable on relationship breakdown. Finally, we consider the distribution of property on the death of a cohabitant.

3.6

Cohabiting couples can seek to regulate the property and financial aspects of their relationship in several ways. The legal consequences of their arrangements may differ according to the method chosen.

3.7

Cohabitants can make outright gifts to each other.

^[11]

^[12]

We shall discuss private regulation involving wills, pensions and life assurance later in this Part when we examine the current law applying specifically on death.

Express declarations of trust in respect of land

3.9

A couple may come to an agreement as to their respective shares (in legal terms, their respective beneficial entitlements) in the house they occupy, or indeed in any property the title to which vests in one or both of them.

3.10

Where a couple purchase a house together, they will usually instruct a solicitor. If it is intended that each should obtain a share in the house, the solicitor should draw up a declaration of trust indicating their respective shares. This must be evidenced in writing and signed by the legal owner or owners of the property who, in the majority of cases, will be the cohabitants themselves.

^[13]

The courts have in recent years emphasised the importance of express declarations of beneficial entitlement.

The probable involvement of a solicitor and the requirements of the Land Registry make it likely that now whenever a couple decide to purchase a property together, they will execute a declaration of trust concluding the matter of beneficial entitlement in that property. In the event of their relationship breaking down, the proceeds of sale of the property should be divided in accordance with the parties' beneficial shares.

^[21]

However, it is unlikely that a declaration of trust will have been made if the property was not jointly purchased. There is no obvious reason why legal advice would be sought where one person owns a house into which another comes to live. Even if a house is purchased at a time when the couple are living together, the Land Registry does not require the respective shares of the parties to be declared if the legal title is transferred into the name of one party only. In either circumstances, the non-owning party who wishes to claim a share in the property must resort to the doctrines of implied trust and proprietary estoppel, discussed below.

Express trusts of personal property

3.14

Express trusts in relation to personal property, including funds in bank accounts in the sole name of one party, do not depend on the execution of any formalities, and so may be declared orally.

^[22]

"Cohabitation contracts"

Private regulation by cohabitants has been problematic owing to the historical illegality of contracts which could be said to promote extra-marital sexual relations. Contemporary case law for the most part clearly distinguishes "meretricious" contracts (where sexual relations form part of the consideration and so the contract may be regarded as contrary to public policy) from those regulating the financial and property relationships of cohabitants.

^[23]

Cohabitation contracts may cover various issues and be concluded at various times. They may regulate the financial affairs of the parties during the currency of the relationship, or make provision for the parties' financial affairs (including the division of their assets) on separation. They may be concluded before the parties' cohabitation, during the parties' cohabitation or following the parties' separation.

3.17

The validity of such contracts depends on the impact, if any, of the illegality rule. It seems that contracts made following separation have never been void for illegality, and so will be binding, provided that they are executed in a deed or otherwise supported by lawful consideration.

^[24]

^[25]

^[26]

There is nothing contrary to public policy in a cohabitation agreement governing the property relationship between adults who intend to cohabit or who are cohabiting for the purposes of enjoying a sexual relationship.^[27]

On this basis, there seems no distinction as far as public policy is concerned as between the types of cohabitation contract described above. The leading textbooks are confident that contracts regulating the financial affairs of cohabitants would be enforced,

^[28]

^[29]

In so far as they are lawful, cohabitation contracts are governed by the ordinary rules of contract law. So, for example, there must be an intention to create legal relations and lawful consideration (or use of a deed), and a contract between cohabitants may be susceptible to challenge on grounds such as fraud, duress, undue influence, misrepresentation, mistake, duress or illegality on some other ground.

IMPLIED TRUSTS AND PROPRIETARY ESTOPPEL

3.20

Where no express declaration of trust has been made on or after the acquisition of property, the laws of implied trusts and proprietary estoppel may be called upon in order to determine the respective entitlements of cohabitants to any property which they own or occupy.

^[30]

^[31]

^[32]

Resulting trusts

Where the legal title to property vests in one party, but another party has paid some (or all) of the purchase price, the presumption of resulting trust holds that beneficial ownership "results" to the parties in proportion to the share of the purchase price that each provided. So if one party contributes £10,000 towards the purchase of property worth £100,000, that party will acquire a 10% share in the value of the property. The presumption of resulting trust may, however, be rebutted by evidence that the contributor did not intend to acquire a beneficial interest in the property purchased. For example, the money may have been provided by way of gift or loan.

^[33]

Most importantly, a resulting trust will only be presumed at all on the making of particular types of contribution. Direct financial contributions to the purchase price, payment of the deposit and contribution of a "right to buy" discount

^[34]

^[35]

Not all financial contributions are sufficient to give rise to a resulting trust. Whether making mortgage payments will give rise to a beneficial interest under a resulting trust depends on the nature of the mortgage and the intention of the payer in making the payments.

However, the significance of these limitations on the applicability of the resulting trust presumption is diminished as a result of the developing law of constructive trusts. The forms of contribution from which a resulting trust would be presumed may also generate a constructive trust, which potentially offers contributors a more substantial share than the pro rata value of their contributions. The constructive trust is therefore likely to be preferred by applicants.

^[40]

Constructive trusts

A constructive trust will arise where there is a common intention between the parties that the beneficial ownership of property should be shared, and the party seeking a share has relied on that intention to his or her detriment or otherwise made a change of position in reliance on it.

Common intention

3.26

Cases of constructive trust fall into two categories:

(1) express common intention cases, arising from an express (though informal) agreement, arrangement or understanding between the parties; and

(2) inferred common intention cases, which will arise where one party has engaged in relevant conduct referable to the acquisition of an interest in the property.^[41]

EXPRESS COMMON INTENTION CONSTRUCTIVE TRUSTS

The courts have been generous in their interpretation of the common intention requirement. They have been prepared to treat excuses for not putting one party on the title documents as evidence of an express common intention to share, even though it is clear that the private intention of the legal owner is that no such share should arise.

^[42]

INFERRED COMMON INTENTION CONSTRUCTIVE TRUSTS

In Lloyds Bank Plc v Rosset, Lord Bridge stated that a common intention would be inferred from financial contributions to the initial purchase price of a house or from mortgage payments, but "it is at least extremely doubtful whether anything less will do".

^[43]

The case law remains crucially ambiguous on the issue of whether a court may infer a common intention from financial contributions if the parties confess to having never considered the matter of ownership. The clear lack of any actual intention might be expected to rebut an inference of common intention to share beneficial ownership. Some judicial remarks suggest that this is not necessarily the case, though those remarks themselves are ambiguous.

^[44]

^[45]

However, whether or not actual intention is required, the inference (or imputation) of common intention will only arise from certain sorts of conduct. It is clear that direct financial contributions to the purchase of the property, including the making of mortgage payments, will suffice.

Detrimental reliance or change of position

It is the applicant's detrimental reliance on the common intention which makes it unconscionable for the legal owner to deny the applicant's beneficial interest. In cases of express common intention, the range of conduct and contributions that will count as detrimental reliance is wider than that which will give rise to an inferred common intention. In cases of inferred common intention, the conduct from which the common intention is inferred will also constitute detrimental reliance.

3.32

However, there remain limitations on which types of conduct the courts will classify as detrimental reliance. In the case of inferred common intention, those limitations derive from the narrow view of what conduct will generate the intention in the first place. In the case of express common intention, although in theory a wider range of conduct is relevant, it seems necessary to demonstrate that the conduct in question is "referable to" the common intention, and not conduct in which the applicant would have engaged anyway had there been no such intention. The case law is particularly ambiguous about conduct which might equally be attributable to the relationship between the parties: setting up home together, raising a family, sharing household bills and so on may not be regarded as detrimental reliance. If the applicant oversteps the boundary of what might be "expected" of a partner, particularly perhaps in light of the applicant's gender,

^[50]

^[51]

Quantifying the interest

Once the relevant intention and detrimental reliance have been found, it is then necessary to quantify the parties' respective shares.

Proprietary estoppel

Proprietary estoppel and constructive trusts share common ground.

^[58]

(1) a representation or assurance that the applicant has or will have an interest in property has been made or given;

(2) the applicant relies upon that representation or assurance; and

(3) the owner then seeks to deny the applicant an interest in a way that would result in unconscionable detriment to the applicant.

Recent decisions emphasise the need to take a broad approach, looking at the matter "in the round", in deciding whether the necessary unconscionability is present.^[59]

The representation or assurance

In order to give rise to an estoppel, there must be a sufficiently specific representation made, or assurance given, by the owner

^[60]

^[61]

^[62]

Detrimental reliance

Detrimental reliance in the estoppel context poses demands on applicants that are similar to the law of constructive trust. Applicants must show that the conduct engaged in was to some extent caused by the representation. While it need not have been the sole cause of the applicant's behaviour, it must have been a factor influencing it.

^[63]

^[64]

^[65]

The remedy: "satisfying the equity"

Where these requirements are satisfied, the applicant has an "equity" which can be enforced against the owner, and the court may be called on to decide what remedy is necessary to satisfy it. The courts adopt a broad approach in deciding how to satisfy the applicant's equity. Recent case law emphasises the need for the remedy to be proportionate in light of the detriment sustained and the expectation held.

Ownership of funds in bank accounts

The ownership of funds in bank accounts merits brief separate discussion. As we have seen, where an account is held in the sole name of one party, an express trust may arise by oral declaration.

^[70]

^[71]

Where both parties contribute to the account, pooling their resources, they will at least be found to own the funds on a resulting trust basis in accordance with their contributions. However, both in pooling cases and in cases where A has provided all the funds, the presumption of resulting trust might be displaced, for example, where there is an express declaration of trust

^[72]

^[73]

Property purchased with funds from a joint account will ordinarily belong to whoever acquires title to that property, even if that person had no or only a part-share in the funds when they were in the account.

^[74]

^[75]

RESOLVING DISPUTES OVER THE HOME CO-OWNED BY COHABITANTS

Under the general law, if one party has no beneficial interest in the property, he or she is vulnerable to being excluded by the legal owner as a trespasser.

^[76]

(1) the intentions of the person(s) creating the trust;

(2) the purposes for which the property is held on trust;

(3) the welfare of any minor who occupies or might reasonably be expected to occupy the property as his home; and

(4) the interests of any secured creditors of any beneficial owner.^[77]

Where one purpose of the trust is to provide a home for the parties' children, the court may be inclined to postpone sale until the home is no longer required for the children (and their primary carer).

3.43

If the court orders that sale should be postponed and one partner granted occupation in the meantime, the occupier may be required to pay the excluded party occupation rent during that period.

^[78]

^[79]

^[80]

In the exercise of its TOLATA jurisdiction, the court has no power to adjust the parties' beneficial shares in the property. On any sale, the proceeds will therefore be split according to the parties' beneficial entitlements, whether express or implied by the court under a resulting or constructive trust.

3.45

We consider below the statutory remedies available to non-owning cohabitants which might result in a limited right of occupation being granted in relation to the property under Part IV of the Family Law Act 1996 or, where the couple have children, under Schedule 1 to the Children Act 1989. The latter might also be invoked between co-owning cohabitants,

^[81]

^[82]

FAMILY LAW REMEDIES ON RELATIONSHIP BREAKDOWN

The court has very wide powers to deal with the property of married couples on their divorce in order to ensure a broadly fair outcome between the parties. These powers are contained in Part II of the Matrimonial Causes Act 1973.

^[83]

There is no analogous, wide-ranging jurisdiction applicable when cohabiting couples separate. Most cohabitants therefore have to rely heavily on the general law of trusts and estoppel. There are, however, three statutory regimes which they may invoke.

Protection of occupation

3.48

Part IV of the Family Law Act 1996 (titled "Family Homes and Domestic Violence") allows the court to make occupation orders in relation to a dwelling-house in which cohabitants live, lived, or intended to live together. The concept of "cohabitant" is not defined in the Act, save by analogy with marriage (and now civil partnership),

^[84]

^[85]

While this jurisdiction is principally used in cases of domestic violence, it is not so restricted and it may in theory be employed to facilitate the separation of cohabitants by making orders for the short-term exclusion of one party from the property. However, the courts regard occupation orders as "draconian", and so without evidence of abuse that would render continued cohabitation potentially harmful, they are reluctant to make orders excluding cohabitants who are otherwise entitled to occupy the property.

^[86]

^[87]

Applicants who are entitled to occupy

The best protection is offered by the Family Law Act to applicants who are "entitled to occupy" the property under the general law of property, trusts or contract, or by statute. Spouses and civil partners are included in this category of applicants by virtue of their statutory "home rights".

(1) the housing needs and housing resources of each of the parties and of any relevant child;^[92]

(2) the financial resources of each of the parties;

(3) the likely effect of any order, or any decision not to make an order, on the health, safety or well-being of the parties and of any relevant child; and

(4) the conduct of the parties in relation to each other and otherwise.

Applicants who are not entitled to occupy

Applications by cohabitants who are not entitled to occupy property which the other is entitled to occupy are more complicated.

^[93]

^[94]

(1) the nature of the parties' relationship and in particular the level of commitment involved in it;

(2) the length of time during which they have cohabited;

(3) whether there are or have been any children who are the children of both parties or for whom both parties have or have had parental responsibility;

(4) (where relevant) the length of time that has elapsed since the parties ceased to live together; and

(5) the existence of any pending proceedings between the parties under Schedule 1 to the Children Act 1989 for a property settlement or transfer for the benefit of a child, or relating to the legal or beneficial ownership of the dwelling.

If the court decides to allow the non-entitled party to occupy, it then considers whether to restrict the entitled partner's occupation of the property. In making that decision, it is directed to have regard in particular to the factors listed in paragraph 3.50 above, and the "balance of harm" arising to the parties from making or not making an order.

^[95]

Where the party seeking the order is not entitled to occupy the property under the general law, the duration of the order is strictly limited in the first instance to a maximum of six months. It may be extended for only one further six-month period, offering at most twelve months' protection.

^[96]

The court has the power to attach various supplementary provisions to an order made under the Family Law Act.

^[97]

^[98]

^[99]

Transfer of tenancies

Under Schedule 7 to the Family Law Act 1996, the court may order the transfer of certain types of residential tenancy when cohabitants have "ceased to cohabit".

^[100]

The legislation directs the courts to have regard to all the circumstances when considering the exercise of this power, including:

(1) the circumstances in which the tenancy was granted to either or both of the cohabitants, or in which either or both became the tenant;

(2) the suitability of the parties as tenants;

(3) factors (1)-(3) from the list of considerations relevant to the making of occupation orders for applicants who are entitled to occupy the property (see paragraph 3.50); and

(4) where only one of the cohabitants is entitled to occupy the dwelling under the tenancy, factors (1)-(4) from the list of additional considerations relevant to the making of occupation orders for applicants who are not entitled to occupy the property (see paragraph 3.51).

3.57

The party to whom the transfer is made may be required to pay compensation to the other.

^[101]

There is little reported case law to show how the courts are exercising this power

^[102]

^[103]

^[104]

Conversely, in making these orders, care also needs to be taken to ensure that the party against whom it is sought is not therefore liable to be treated as "intentionally homeless" and so prejudiced in his or her attempts to find new social housing.

^[105]

In some circumstances, notably where the tenant has the right to buy, an application for tenancy transfer might be bitterly contested. However, in other cases the power to obtain a tenancy transfer may be of only limited value. Much depends on the security represented by the tenancy. In the private sector, the tenant is likely to hold an assured shorthold tenancy which is easily terminable by the landlord serving notice.

^[106]

Where the tenancy is held jointly, it may be vulnerable to one party serving notice to quit on the landlord before an application can be made.

Provision for children

Maintenance and the Child Support Act 1991

Where the Child Support Agency has jurisdiction over a case under the Child Support Act 1991,

^[112]

^[113]

Capital provision under Schedule 1 to the Children Act 1989

However, in all cases, the court has exclusive jurisdiction to make orders against the child's parent for lump sums,

^[114]

^[115]

The legislation sets out a checklist of factors to be considered by a court exercising its jurisdiction under Schedule 1. These factors are very similar to those contained in matrimonial legislation for the benefit of children of spouses.

^[116]

^[117]

^[118]

(1) the income, earning capacity, property and other financial resources which each parent^[119] has or is likely to have in the foreseeable future;

(2) the financial needs, obligations and responsibilities which each parent has or is likely to have in the foreseeable future;

(3) the financial needs of the child;

(4) the income, earning capacity (if any), property and other financial resources of the child;

(5) any physical or mental disability of the child; and

(6) the manner in which the child was being, or was expected to be, educated or trained.

Where the parties have been cohabiting, the standard of living enjoyed by the family is also a relevant consideration.^[120]

Orders made under this legislation can, in theory, provide children with very substantial protection, for example, the provision of accommodation in the family home with the primary carer.

3.66

There are, however, important limitations to orders under the Children Act. They may ordinarily be directed only to meeting the children's needs during minority, or until the completion of their education.

^[121]

^[122]

^[123]

The parent caring for the children is likely to benefit indirectly from orders made for the children, not least by being permitted to occupy the property reserved for them. However, any benefit enjoyed will be in that individual's capacity as the children's primary carer, and only to the extent necessary to enable him or her to perform that role.

^[124]

In the unusual cases where the court has jurisdiction to make periodical payments for the child,

^[125]

^[126]

^[127]

PROPERTY ENTITLEMENT ON THE DEATH OF A COHABITANT

In general terms, English law confers full powers of testamentary disposition on competent individuals, whether married or unmarried. Individuals with capacity to do so may therefore dispose of their estate as they wish by making a will, provided that the disposition complies with the relevant statutory formalities and is otherwise valid. Where a person dies having failed to dispose of the whole, or some part, of his or her estate, the intestacy rules will govern its destination.

3.70

However, the court has an important statutory discretion to make awards for reasonable financial provision to defined classes of applicant under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act"). The effect of a court order made under this legislation will be to vary or even to overturn the testator's dispositions by will (or the devolution of such of the estate that is not disposed of by will pursuant to the intestacy rules).

3.71

It is also important to remember that whenever someone dies, the first task must be to ascertain what property falls within the deceased's estate. For these purposes, the general law of property and trusts, outlined above from paragraphs 3.6 to 3.14 and from 3.20 to 3.40, will apply.

Property passing otherwise than by probate

3.72

The property of a deceased person may pass by other means than by will or by operation of the intestacy rules. Certain items of property (typically a house, or a bank account) may be held by cohabitants beneficially as joint tenants at the time of the death, in which case the doctrine of survivorship will apply.

^[128]

Provision may also be made for a cohabitant by exercising a power of nomination in relation to small investments held by industrial and provident societies.

^[129]

^[130]

Certain residential tenancies (that is, of houses or flats) are transmitted on death by the operation of the Housing Act 1985, the Housing Act 1988, the Housing Act 1996 and (now relatively rarely) the Rent Act 1977.

^[131]

The Life Assurance Act 1774 renders void and illegal any policy of insurance where the applicant for the policy did not have an "insurable interest" in the life to be insured. A person has an insurable interest in the life of his or her spouse or civil partner, regardless of whether the death would cause any financial loss. However, there is no such automatic interest in the case of cohabitants. The subject of life assurance falls outside the scope of this project, but in a separate project on insurance contract law we are considering whether these rules should be reviewed to establish whether reform is desirable.

^[132]

Intestacy

Entitlement on intestacy

Under current law, a cohabitant has no entitlement on the intestacy of his or her partner. Entitlement under the intestacy rules is strictly confined to those who are related by blood or by marriage to the deceased.

Bona vacantia

3.77

There is, however, one instance where the operation of the intestacy rules themselves may, albeit indirectly, result in benefit to a cohabitant. Where an intestate dies without leaving any relatives qualifying under the intestacy rules, his or her estate will devolve upon the Crown (or, if the intestate dies resident there, upon the Royal Duchies of Cornwall or Lancaster) as bona vacantia.

^[133]

The Crown has power (historically derived from the Royal prerogative) to make discretionary provision for "dependants" of the intestate and for other persons for whom the intestate might reasonably have been expected to make provision.

^[134]

^[135]

If the deceased was married at the time of his or her death then, in general, the estate will not pass to the Crown. However, discretionary grants have often been made in cases where the applicant and the deceased, although unmarried, lived together in an established relationship. For example, the deceased may have lived with his or her partner as man and wife. Alternatively, the deceased may have lived with his or her partner in an established same-sex relationship.

When deciding whether to make a discretionary grant, and deciding upon its value, the factors which the Treasury Solicitor considers are:

(1) the size and nature of the estate;

(2) the length and nature of the relationship between the deceased and the applicant;

(3) any legal or moral obligations the deceased had towards the applicant;

(4) the way in which the applicant behaved towards the deceased (including the contribution, if any, made by the applicant to the deceased's welfare); and

(5) any other matter which in the particular circumstances the Treasury Solicitor considers relevant.^[136]

These factors are similar to, but not the same as, the considerations to which the court must have regard in exercising its jurisdiction under the 1975 Act.^[137]

There is substantial overlap between the making of discretionary grants and the law of family provision. Where the applicant for a grant is entitled to make a claim under the 1975 Act, it is the Treasury Solicitor's policy to require the applicant to bring proceedings under the Act.

^[138]

^[139]

^[140]

In theory, at least, there may be advantages to claiming under bona vacantia rather than under the 1975 Act, although, in practice, much will depend on the size of the estate. If a cohabitant claims reasonable financial provision under the 1975 Act, the claim is confined to that which is reasonable for his or her maintenance.

^[141]

bona vacantia

Family provision

The Inheritance (Provision for Family and Dependants) Act 1975 (as amended) provides a scheme for those who claim that the disposition of an estate (whether effected by will or the intestacy rules or the combination of the two) has failed to make them reasonable financial provision.

3.83

The scope and extent of family provision legislation has expanded since its introduction in 1938. Initially, the only persons who could apply were the deceased's spouse, infant son, unmarried daughter, and adult sons and married daughters who by reason of some mental or physical disability were incapable of maintaining themselves.

^[142]

The current statute was enacted following a review of the family provision laws by the Law Commission.

^[143]

^[144]

^[145]

Claim as a dependant

A dependant is defined as "any person [not otherwise qualifying as an applicant] who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased".

^[146]

^[147]

^[148]

Further clarification is provided by section 1(3) of the 1975 Act:

…a person shall be treated as being maintained by the deceased, either wholly or partly, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person.

3.87

In order to determine whether the applicant is eligible to apply as a dependant, the court must therefore value the contributions made by the deceased, and any valuable consideration given by the applicant, and conduct a balancing exercise to determine whether the former exceeds the latter.

^[149]

^[150]

^[151]

The effect of these limitations is that it is not always the most deserving of applicants who qualifies and that those who have given more than they have taken (for example by devoting many years of care and possibly financial support to an ailing partner) may not be able to claim.

Claim as a cohabitant

3.89

It was partly as a consequence of the limitations of the class of dependants that the Law Commission recommended the addition of cohabitants in their own right as a sixth class of applicant to the 1975 Act.

^[152]

during the whole of the period of two years ending immediately before the date when the deceased died…

(a) in the same household as the deceased; and

(b) as the husband, wife or civil partner, of the deceased (although not in fact married to or a civil partner of him or her).^[153]

Reasonable financial provision

Whether the claim is made as dependant or as cohabitant, the applicant has to establish that the disposition of the deceased's estate effected by his or her will or by the law relating to intestacy (or by the combination of the two) is not such as to make the applicant "reasonable financial provision". If the claimant crosses that hurdle, the court then has to consider what, if any, order is required so as to make such "reasonable financial provision".

3.91

Reasonable financial provision in both cases is statutorily defined as "such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance".

^[154]

^[155]

Whether the claim is made as cohabitant or dependant, in considering whether the disposition of the deceased's estate makes reasonable financial provision for the applicant, and in determining whether and in what manner to exercise its powers to make such provision, the court must have regard to:

(1) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(2) the financial resources and financial needs which any other applicant for an order has or is likely to have in the foreseeable future;

(3) the financial resources and financial needs which any beneficiary of the deceased's estate has or is likely to have in the foreseeable future;

(4) any obligations and responsibilities which the deceased had towards any applicant for an order or any beneficiary of the deceased's estate;

(5) the size and nature of the net estate of the deceased;

(6) any physical or mental disability of any applicant for an order or of any beneficiary of the deceased's estate; and

(7) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

3.93

If the claim is made as a dependant, the court must have regard to "the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility".

^[156]

If the claim is made as a cohabitant, the court must also have regard to:

(1) the age of the applicant and the duration of the cohabitation; and

(2) the contribution made by the applicant to the welfare of the deceased's family, including any contribution made by looking after the home or caring for the family.^[157]

If the court finds that the applicant has not received "reasonable financial provision", as defined, from the deceased's estate, and concludes that some provision should be made, it has a wide range of orders at its disposal. Those orders, similar to those available under the Matrimonial Causes Act 1973 on divorce and Schedule 1 to the Children Act 1989, include periodical payments, lump sum, property transfer, and property settlement orders.

^[158]

CONCLUSION

It will be clear from the foregoing survey that cohabitants and their children are not ignored by the law. Both statute law and the general law may be used to resolve some of the disputes that arise on separation or on death of one party. Cohabitants can regulate their affairs through express trusts or contracts. If they have not taken these steps, they may seek to claim a beneficial interest in a specific asset using the law of implied trusts or proprietary estoppel. Certain statutory remedies are available; cohabitants may claim orders for the occupation of the home, tenancy transfer and financial provision for their children. Cohabitants may be entitled to claim financial provision from the estate of their deceased partner.

3.97

However, the resolution of cohabitants' financial and property affairs on the termination of their relationships is largely driven by strict property law entitlements. The current law has been subjected to heavy criticism. In Part 4, we explore the problems that it has left unremedied and created.

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Note 1    Views regarding the duration of this mythical period vary: the deceased in Churchill v Roach [2002] EWHC 3230 (Ch), [2004] 2 FLR 989 apparently believed that after six months’ cohabitation, seven days a week, his partner would become his common law wife and acquire an interest in the property: [2004] 2 FLR 989, 991.    [Back]

Note 2    It would seem that failure to appreciate the legal distinctions between marriage and cohabitation is not unique to this jurisdiction. Evidence from Germany and the Netherlands suggests that there is a similar problem there: W Schrama, De niet-huwelijkse samenleving in het Nederlandse en het Duitse recht (2004) pp 375 and 378.     [Back]

Note 3    A Barlow, S Duncan, G James and A Park, “Just a piece of paper? Marriage and cohabitation”, in A Park, J Curtice, K Thomson, L Jarvis and C Bromley (eds), British Social Attitudes: the 18th Report (2001) pp 45-6. Questions in the follow-up qualitative interviews about particular areas of the law found that respondents were less wrong in their perceptions about cohabitants’ (lack of) rights to maintenance on separation and to provision on death, though there was still a substantial minority that were mistaken: A Barlow, S Duncan, G James and A Park, Cohabitation, Marriage and the Law (2005) pp 39-41.    [Back]

Note 4    http://www.advicenow.org.uk/go/livingtogether/feature_236.html (last visited 4 May 2006).    [Back]

Note 5    And now, in almost all respects, civil partnership.    [Back]

Note 6    M Hibbs, C Barton and J Beswick, “Why marry? – Perceptions of the Affianced” (2001) 31 Family Law 197.    [Back]

Note 7    For example, in relation to means-testing for welfare benefits, tax credits and access to non-molestation orders.    [Back]

Note 8    Matrimonial Causes Act 1973, Part II; Civil Partnership Act 2004, sch 5.    [Back]

Note 9    Pettitt v Pettitt [1970] AC 777, 798, per Lord Morris.    [Back]

Note 10    For a discussion of the law in this area in the matrimonial context (where the general law is the same as it is for cohabitants), see Matrimonial Property (1988) Law Com No 175, paras 2.1 to 2.5.    [Back]

Note 11    A promise to make a gift is unenforceable for want of consideration unless it is made by deed, but this does not apply to a completed gift: Ayerst v Jenkins (1873) LR 16 Eq 275.    [Back]

Note 12    Chandler v Kerley [1978] 1 WLR 693.    [Back]

Note 13    Law of Property Act 1925, s 53(1)(b).    [Back]

Note 14    Judges have been beseeching solicitors to take the instructions of transferees as to beneficial interests in property for many years – see Cowcher v Cowcher [1972] 1 WLR 425, 442, per Bagnall J. The most famous of these remarks is that of Ward LJ in Carlton v Goodman [2002] EWCA Civ 545, [2002] 2 FLR 259, at [44]. “I ask in despair how often this court has to remind conveyancers that they would save their clients a great deal of later difficulty if only they would sit the purchasers down, explain the difference between a joint tenancy and tenancy in common, ascertain what they want and then expressly declare in the conveyance or transfer how the beneficial interest is to be held because that will be conclusive and save all argument. When are conveyancers going to do this as a matter of invariable standard practice? This court has urged that time after time. Perhaps conveyancers do not 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.” (The use of the upper case for emphasis is that of the judge.) Sir Peter Gibson recently made a similar comment in Crossley v Crossley [2005] EWCA Civ 1581, [2006] 1 FCR 655, at [5].    [Back]

Note 15    Pettitt v Pettitt [1970] AC 777, 813, per Lord Upjohn; see also Goodman v Gallant [1986] Fam 106.    [Back]

Note 16    Pettitt v Pettitt [1970] AC 777, 813, per Lord Upjohn; see also Goodman v Gallant [1986] Fam 106.    [Back]

Note 17    Bullock v Lloyds Bank Ltd [1955] Ch 317.    [Back]

Note 18    Whether on an application for first registration, on a transfer of land with registered title, or on an assent to the vesting of land in persons entitled under a deceased’s estate.    [Back]

Note 19    The information is required under the provisions of the Land Registration Act 2002, s 44(1), and the Land Registration Rules 2003, r 95(2)(a). It must be given on Form FR1 in the case of first registration, and on Form TR1 in the case of a transfer of registered land.    [Back]

Note 20    Under option (c), the parties may specify their unequal shares, or they may state that the land is held on trust for the members of an unincorporated association or in accordance with a separate trust deed.    [Back]

Note 21    Disputes about whether the property should be sold so as to realise the parties’ shares may be determined by application under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”), s 14.    [Back]

Note 22    Rowe v Prance [1999] 2 FLR 787; Paul v Constance [1977] 1 WLR 527.    [Back]

Note 23    See G Treitel, The Law of Contract (11th ed 2003) p 443-444.    [Back]

Note 24    See G Treitel, The Law of Contract (11th ed 2003) p 443, n 56.     [Back]

Note 25    Upfill v Wright [1911] 1 KB 506.    [Back]

Note 26    Treitel, The Law of Contract (11th ed 2003) p 443; R Probert, “Sutton v Mishcon de Reya and Gawor & Co – Cohabitation contracts and Swedish sex slaves” (2004) 16 Child and Family Law Quarterly 453. In Tanner v Tanner (No 1) [1975] 1 WLR 1346, the court implied a contractual licence between an unmarried couple, so it seems unlikely that the courts would hold an express contract to be void for illegality.    [Back]

Note 27    Sutton v Mishcon de Reya and Gawor & Co [2003] EWHC 3166 (Ch), [2004] 1 FLR 837, at [22].    [Back]

Note 28    See, for example, S Cretney, J Masson and R Bailey-Harris, Principles of Family Law (7th ed 2003) pp 135-136; G Treitel, The Law of Contract (11th ed 2003) p 444; Chitty on Contracts (29th ed 2004) paras 16-067 and 16-068; and C Barton, Cohabitation Contracts: Extra-Marital Partnerships and Law Reform (1985) p 48-49. Note also that the Committee of Ministers of the Council of Europe has recommended that cohabitation contracts should be enforceable: Committee of Ministers of the Council of Europe, The validity of contracts between persons living together as an unmarried couple and their testamentary dispositions Recommendation No R (88) 3 of 7 March 1988: “contracts relating to property between persons living together as an unmarried couple, or which regulated matters concerning their property either during their relationship or when their relationship has ceased, should not be considered invalid solely because they have been concluded under these conditions”.    [Back]

Note 29    For example, H Wood, D Lush and D Bishop, Cohabitation: Law, Practice and Precedents (3rd ed 2005).    [Back]

Note 30    Cases regarding beneficial ownership, most between cohabitants, constitute around 50% of the caseload of the Adjudicator to HM Land Registry. In a study of legally-aided cases, 61% of land-related cases involved current or former cohabitants or spouses: T Goriely and P Das Gupta, Breaking the Code: The impact of legal aid reforms on general civil litigation (2001) ch 11. This study pre-dated major legal aid reforms in April 2000. Data received from the Legal Services Commission for 2004-05 and 2005-06 show that around 80% of cases receiving General Family Help or Legal Representation in relation to trusts of land involved ex-cohabitants.    [Back]

Note 31    Though the new Land Registry rules requiring express declarations of the beneficial shares should mean that, in cases of joint title, the law of implied trusts need no longer be relied on: see para 3.11.    [Back]

Note 32    See paras 3.38 to 3.40; and S Cretney, J Masson and R Bailey-Harris, Principles of Family Law (7th ed 2003) pp 159-160.    [Back]

Note 33    Fowkes v Pascoe (1875) 10 Ch App 343; Walker v Walker, judgment of 12 April 1984, CA (unreported); Re Sharpe (A Bankrupt) [1980] 1 WLR 219.     [Back]

Note 34    Springette v Defoe [1992] 2 FLR 388.    [Back]

Note 35    Huntingford v Hobbs [1993] 1 FLR 736; Carlton v Goodman [2002] EWCA Civ 545, [2002] 2 FLR 259.     [Back]

Note 36    See for example Curley v Parkes [2004] EWCA Civ 1515, [2005] 1 P & CR DG15 (payer not party to mortgage); McKenzie v McKenzie [2003] 2 P & CR DG6, at [77] of the full judgment (payer party to mortgage); for comment, M Dixon, “Resulting and Constructive Trusts of Land: the Mist Descends and Rises” (2005) Conveyancer and Property Lawyer 79.    [Back]

Note 37    Gissing v Gissing [1971] AC 886.    [Back]

Note 38    Buggs v Buggs [2003] EWHC 1538 (Ch), [2004] WTLR 799.    [Back]

Note 39    Burns v Burns [1984] Ch 317.    [Back]

Note 40    Though that fact sometimes appears to be curiously overlooked: for example, no constructive trust argument was considered in Curley v Parkes [2004] EWCA Civ 1515, [2005] 1 P & CR DG15.    [Back]

Note 41    Lloyds Bank Plc v Rosset [1991] 1 AC 107.    [Back]

Note 42    Grant v Edwards [1986] Ch 638; Eves v Eves [1975] 1 WLR 1338.    [Back]

Note 43    Lloyds Bank Plc v Rosset [1991] 1 AC 107, 133.    [Back]

Note 44    Midland Bank Plc v Cooke [1995] 4 All ER 563, 575D, per Waite LJ: “It would be anomalous…to create a range of home-buyers who were beyond the pale of equity’s assistance in formulating a fair presumed basis for the sharing of beneficial title, simply because they had been honest enough to admit that they never gave ownership a thought or reached any agreement about it”. However, Waite LJ may have intended to confine his remarks to the quantum of a constructive trust, rather than its existence: “I would therefore hold that positive evidence that the parties neither discussed nor intended any agreement as to the proportions of their beneficial interest does not preclude the court, on general equitable principles, from inferring one” (at 575H, emphasis added). Having said this, the facts of the case suggest that the parties had not reached a common intention to share ownership, let alone a common intention as to what their shares should be, but Mrs Cooke obtained an interest nevertheless. Therefore, Waite LJ’s comments must apply to cases where there is evidence that the parties did not form an intention to share ownership, as well as cases where the parties did not form an intention as to the quantum of their shares. In Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211, at [68], Chadwick LJ said that “where the evidence is that the matter was not discussed at all” a common intention “will readily be inferred from the fact that each has made a financial contribution”. However, he went on to discuss quantum at [71], and said that “if it were their common intention that each should have some beneficial interest in the property – which is the hypothesis upon which it becomes necessary to answer the second question [how to quantify the beneficial interest] – then, in the absence of evidence that they gave any thought to the amount of their respective shares, the necessary inference is that they must have intended that question would be answered later on the basis of what was then seen to be fair”. This appears to require the actual existence of a common intention in order for the trust to arise (though not as regards quantum), and prevents the finding of an inferred common intention when there is positive evidence that the parties did not form such a common intention.    [Back]

Note 45    Lightfoot v Lightfoot-Brown [2005] EWCA Civ 201, [2005] 2 P & CR 22.    [Back]

Note 46    Though, as in the case of resulting trusts, the evidence might sometimes indicate that those payments were intended for some purpose other than the creation of a beneficial share: McKenzie v McKenzie [2003] 2 P & CR DG6.    [Back]

Note 47    Gissing v Gissing [1971] AC 886; Le Foe v Le Foe and Woolwich Building Society plc [2001] 2 FLR 970.    [Back]

Note 48    Lloyds Bank v Rosset [1991] 1 AC 107, 132H-133B, per Lord Bridge; Buggs v Buggs [2003] EWHC 1538 (Ch), [2004] WTLR 799; Mollo v Mollo [2000] WTLR 227; Mehra v Shah [2004] EWCA Civ 632, judgment of 20 May 2004, CA (unreported); Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254; the point was not even considered in Curley v Parkes [2004] EWCA Civ 1515, [2005] 1 P & CR DG 15.     [Back]

Note 49    Burns v Burns [1984] Ch 317; Lloyds Bank v Rosset [1991] 1 AC 107.    [Back]

Note 50    See K Gray & S F Gray, Elements of Land Law (4th ed 2005) para 10.123.    [Back]

Note 51    Contrast Grant v Edwards [1986] Ch 638, 657A-B, per Browne-Wilkinson V-C and 648G-H, per Nourse LJ; Hammond v Mitchell [1991] 1 WLR 1127; Eves v Eves [1975] 1 WLR 1338; Cox v Jones [2004] EWHC 1486 (Ch), [2004] 2 FLR 1010.    [Back]

Note 52    In Hurst v Supperstone [2005] EWHC 1309 (Ch), [2005] 1 FCR 352, at [11], Mr Michael Briggs QC, sitting as a deputy High Court judge, pointed out that once the court has found a common intention to share beneficial ownership, it should ask whether the parties intended to share as beneficial joint tenants or tenants in common. As joint tenants are equally entitled to the property, the parties can only hold the property in unequal shares if they intended (or the court imputes an intention) to hold the property as tenants in common. Only at this point does the question of quantifying the parties’ interests arise.     [Back]

Note 53    Mortgage Corporation v Shaire [2001] Ch 743, 750B, per Neuberger J; Crossley v Crossley [2005] EWCA Civ 1581, [2006] 1 FCR 655.    [Back]

Note 54    Midland Bank Plc v Cooke [1995] 4 All ER 562, 574C-E; Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211, at [69].    [Back]

Note 55    Midland Bank Plc v Cooke [1995] 4 All ER 562; Hurst v Supperstone [2005] EWHC 1309 (Ch), [2005] 1 FCR 352.    [Back]

Note 56    Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211; Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254. In Midland Bank v Cooke [1995] 4 All ER 562, the wife contributed less than 7% of the purchase price, yet was awarded a 50% beneficial interest. In Oxley, Chadwick LJ stated, at [69] and [73], that he was undertaking the same broad analysis of the parties’ whole course of dealing in relation to the property. However, the quantification of the constructive trust in Oxley reflected the parties’ financial contributions, and it seems likely that the outcome would have been the same had the case been decided on a resulting trust basis. The parties’ marital status may be significant; in Mortgage Corporation v Shaire [2001] Ch 743, 750, Neuberger J suggested that “the extent of the financial contribution is perhaps not as important an aspect as it was once thought to be. It may well carry more weight in a case where the parties are unmarried than where they were married”. In Cooke (at 576C-D), Waite LJ appears to attach weight to the Cookes having been married, but in Oxley (at [74]), Chadwick LJ does not refer to the parties’ status as cohabitants when deciding on the quantification of their respective shares. See E Cooke, “Cohabitants, Common Intention and Contributions (again)” [2005] Conveyancer and Property Lawyer 555, at 561-562.    [Back]

Note 57    See, for example, Cox v Jones [2004] EWHC 1486 (Ch), [2004] 2 FLR 1010 and Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254.    [Back]

Note 58    The precise relationship between the two doctrines has long been a matter of judicial and academic debate: see Sharing Homes: A Discussion Paper (2002) Law Com No 278, paras 2.101 to 2.104.    [Back]

Note 59    Gillett v Holt [2001] Ch 210; Jennings v Rice [2002] EWCA Civ 159, [2003] 1 FCR 501.    [Back]

Note 60    This may involve the owner standing by while the applicant makes a unilateral mistake about his or her entitlement in relation to the property: Ward v Kirkland [1967] Ch 194, 239A-B, per Ungoed Thomas J; Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133, 148E-F, per Oliver J.    [Back]

Note 61    Jennings v Rice [2002] EWCA Civ 159, [2003] 1 FCR 501.    [Back]

Note 62    Lissimore v Downing [2003] 2 FLR 308; Layton v Martin [1986] 2 FLR 227.    [Back]

Note 63    Wayling v Jones [1995] 2 FLR 1029.    [Back]

Note 64    Greasley v Cooke [1980] 1 WLR 1306; Campbell v Griffin [2001] EWCA Civ 990, [2001] WTLR 981.    [Back]

Note 65    Coombes v Smith [1986] 1 WLR 808; Lissimore v Downing [2003] 2 FLR 308; cf Grant v Edwards [1986] Ch 638, 656, per Browne-Wilkinson V-C.    [Back]

Note 66    Jennings v Rice [2002] EWCA Civ 159, [2003] 1 FCR 501; Gillett v Holt [2001] Ch 210.    [Back]

Note 67    For example, a freehold in Pascoe v Turner [1979] 1 WLR 431; a life interest in Greasley v Cooke [1980] 1 WLR 1306; leases in Griffiths v Williams [1977] 248 EG 947 and J T Developments Ltd v Quinn (1991) 62 P & CR 33; and an easement in Crabb v Arun DC [1976] Ch 179.    [Back]

Note 68    Dodsworth v Dodsworth (1973) 228 EG 1115; Jennings v Rice [2002] EWCA Civ 159, [2003] 1 FCR 501.    [Back]

Note 69    Sledmore v Dalby (1996) 72 P & CR 196. Roch LJ, with whom Butler-Sloss LJ agreed, said (at 205) that an equity had arisen by virtue of proprietary estoppel, but that the minimum necessary to satisfy that equity had already been received by the claimant. However, Hobhouse LJ considered (at 209) that the claimant had not even established an equity in her favour by virtue of proprietary estoppel; the issue of the minimum necessary remedy therefore did not arise.     [Back]

Note 70    Paul v Constance [1977] 1 WLR 527.    [Back]

Note 71    Stoeckert v Geddes (No 2) [2004] UKPC 54, (2004-05) 7 ITELR 506, from the Court of Appeal of Jamaica.    [Back]

Note 72    Cf Paul v Constance [1977] 1 WLR 527 in relation to an account in the name of one party.    [Back]

Note 73    For a discussion of joint tenancy and tenancy in common, see Sharing Homes: A Discussion Paper (2002) Law Com No 278, paras 2.10 to 2.22.    [Back]

Note 74    Stoeckert v Geddes (No 2) [2004] UKPC 54, (2004-05) 7 ITELR 506.    [Back]

Note 75    Jones v Maynard [1951] Ch 572.    [Back]

Note 76    Subject to the finding of a contractual licence for a determinate period or that might require reasonable notice be given: Chandler v Kerley [1978] 1 WLR 693.     [Back]

Note 77    TOLATA, s 15. For the application of this provision, see Mortgage Corporation v Shaire [2001] Ch 743; Bank of Ireland Home Mortgages v Bell [2001] 2 All ER (Comm) 920; First National Bank plc v Achampong [2003] EWCA Civ 487, [2004] 1 FCR 18; and Chan Pui Chun v Leung Kam Ho [2002] EWCA Civ 1075, [2003] 1 FLR 23.    [Back]

Note 78    TOLATA, ss 13-14.    [Back]

Note 79    See Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254; Clarke v Harlowe [2005] EWHC 3062 (Ch), [2005] WTLR 1473; E Cooke, “Cohabitants, common intentions and contributions (again)” [2005] Conveyancer and Property Lawyer 555.    [Back]

Note 80    Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254.    [Back]

Note 81    Especially if it is unclear whether or not the parties share the beneficial interest.    [Back]

Note 82    White v White [2003] EWCA Civ 924, [2004] 2 FLR 321.    [Back]

Note 83    Equivalent provision is made for civil partners under the Civil Partnership Act 2004, sch 5. An extract from the Matrimonial Causes Act 1973, setting out the statutory checklist and other factors to which the court is required to have regard when exercising its discretion to grant ancillary relief, may be found in Appendix A.     [Back]

Note 84    Family Law Act 1996, s 62(1); for judicial application of the concept, see G v F [2000] Fam 186.    [Back]

Note 85    See generally Part 9.    [Back]

Note 86    Chalmers v Johns [1999] 1 FLR 392, a case arising at the end of a twenty-year long cohabiting relationship, where an interim occupation order was withheld despite a history of assaults by each party against the other, in preference for use of non-molestation orders.    [Back]

Note 87    TOLATA, ss 12-15.    [Back]

Note 88    Family Law Act 1996, s 30.    [Back]

Note 89    Family Law Act 1996, s 33.    [Back]

Note 90    See Family Law Act 1996, s 33(7): this complicated test in broad terms entails weighing (i) the harm that might be suffered by the applicant or any relevant child attributable to the conduct of the respondent if an order were not made against (ii) the harm that might be suffered by the respondent or any relevant child if an order were made. If the harm under (i) is greater than that under (ii), an order must be made. If not, the court has a discretion to make an order.    [Back]

Note 91    Family Law Act 1996, s 33(6).    [Back]

Note 92    Defined broadly by s 62(2) to include any children who lives with or who might reasonably be expected to live with either party and whose interests the court considers relevant.     [Back]

Note 93    Family Law Act 1996, s 36; cf s 38, which applies where neither party is entitled to occupy.    [Back]

Note 94    Family Law Act 1996, s 36(6).    [Back]

Note 95    Family Law Act 1996, s 36(7)(8): see n 90 above, but note that in cases brought by non-entitled cohabitants, the balance of harm test never requires the court to make an order; it retains complete discretion.     [Back]

Note 96    Family Law Act 1996, s 36(10) and s 38(6).    [Back]

Note 97    Family Law Act 1996, s 40(1).    [Back]

Note 98    See Nwogbe v Nwogbe [2000] 2 FLR 744.    [Back]

Note 99    TOLATA contains no provisions that could be used to plug the gap. There might be indirect means of enforcing an obligation to pay in matrimonial cases: for example, spouse A undertakes to pay the mortgage and the court encourages A to meet that (unenforceable) undertaking by making a nominal periodical payment order in favour of spouse B, who is in possession of the property. B in turn undertakes not to seek a variation of the periodical payments order unless A fails to pay the mortgage, in which case the order will be increased so that B can pay the mortgage directly. This mechanism involves certain complexities and potential economic disadvantage to B.    [Back]

Note 100    This provision originates in Domestic Violence and Occupation of the Family Home (1992) Law Com No 207, Part VI.     [Back]

Note 101    Family Law Act 1996, sch 7, para 10.    [Back]

Note 102    The tenancy in Gay v Sheeran [2000] 1 WLR 673 was not of a relevant type.    [Back]

Note 103    Figures obtained from the Legal Services Commission for the year from April 2005 up to March 2006 (financial year ongoing) reveal only a very small number of cases involving tenancy transfer between cohabitants receiving General Family Help and Legal Representation; Legal Help, Family Mediation or Help with Mediation cases are not included, as the codes for these are not specific enough to identify cases involving cohabitants.    [Back]

Note 104    Vuong v Huang, judgment of 11 January 1999, Family Division (unreported), [1999] CLY 3734; cf Jones v Jones [1997] Fam 59; Akintola v Akintola [2001] EWCA Civ 1989, [2002] 1 FLR 701.    [Back]

Note 105    See Housing Act 1996, s 191.    [Back]

Note 106    Housing Act 1988, s 21(1): the landlord can serve a notice under s 21(1)(b) at any point which must give the tenants a minimum of two months’ notice. However, the court may not make an order for possession during the first six months of the tenancy.    [Back]

Note 107    Hammersmith and Fulham LBC v Monk [1992] 1 AC 478; Newlon Housing Trust v Al-Sulaimen [1999] 1 AC 313.    [Back]

Note 108    Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, held that the consequent possession proceedings brought by the public sector landlord were compatible with the Convention (this finding seems to survive Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 WLR 570); the case did not consider the compatibility of the underlying notice to quit rule as it operates between the tenants. In relation to the latter, see S Bright, “Ending tenancies by notice to quit: the human rights challenge” (2004) 120 Law Quarterly Review 398; and I Loveland, “After Qazi: Part 1: Sole tenant termination of joint tenancies and Article 8 ECHR” (2005) Conveyancer and Property Lawyer 123.    [Back]

Note 109    In the case of spouses, see H Conway, “Protecting Tenancies on Marriage Breakdown” (2001) 31 Family Law 208; for arguments based on the European Convention for the Protection of Human Rights and Fundamental Freedoms, see I Loveland, “After Qazi: Part 1: Sole tenant termination of joint tenancies and Article 8 ECHR” (2005) Conveyancer and Property Lawyer 123.    [Back]

Note 110    Bater v Greenwich LBC [1999] 4 All ER 944, per Thorpe LJ. The court may also have inherent powers to bar the frustration of an application under Schedule 7 before notice to quit has been given: S Bridge, “Transferring Tenancies of the Family Home” (1998) 28 Family Law 26, at 29.    [Back]

Note 111    Renting Homes: The Final Report, Volume 1: Report (2006) Law Com No 297, paras 4.9 to 4.12.    [Back]

Note 112    Generally, where the child is a “qualifying child” (Child Support Act 1991, ss 3(1) and 55), maintenance is sought by a “person with care” (s 3(3)) from a “non-resident parent” (s 3(2)), and all parties are habitually resident in the United Kingdom (s 44); see also restrictions in s 4(10).    [Back]

Note 113    The cases where the court will have the power to order periodical payments alongside the Agency’s maintenance calculation are listed in Child Support Act 1991, s 8: orders made by consent (which only preclude an application to the Agency for one year (s 4(10)(aa)) or until the parent with care claims relevant means-tested benefits, whichever is sooner); orders in respect of education expenses (such as school fees) or expenses attributable to the child’s disability; and orders dealing with any net income of the non-resident parent which exceeds the jurisdictional limit of the Agency (£2,000 per week).    [Back]

Note 114    Lump sum orders must not be used as a vehicle for evading the limits on the court’s jurisdiction to make maintenance provision. Capitalised maintenance in the form of a lump sum therefore cannot be ordered where the Agency has exclusive jurisdiction over maintenance: Phillips v Peace [1996] 2 FLR 230.    [Back]

Note 115    Regardless of whether the parents ever cohabited. The Act can only be used to make orders against an individual who is not the child’s parent where that individual is married (or in a civil partnership) and both parties to the marriage (or civil partnership) treat the child as a child of the family. This is the case regardless of whether the child is related to either party. Cohabitant “step-parents” and other non-parents are therefore not liable for their partners’ children: Children Act 1989, s 105 and sch 1, para 16.    [Back]

Note 116    See, for example, Matrimonial Causes Act 1973, s 25(3)-(4); and, for civil partners, Civil Partnership Act 2004, sch 5, para 22. Where the parents have been married and divorce proceedings are pending, the court will almost always make orders under its Matrimonial Causes Act jurisdiction rather than under the Children Act 1989, sch 1.     [Back]

Note 117    Children Act 1989, s 1 and s 105, definition of “upbringing”.    [Back]

Note 118    Re P (A Child) (Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865.    [Back]

Note 119    The legislation also allows applications to be made by various non-parents: Children Act 1989, sch 1, para 1(1) and in limited cases by the child, para 2(1), in which cases see para 4(4).     [Back]

Note 120    F v G (A Child: Financial Provision) [2004] EWHC 1848 (Fam), [2005] 1 FLR 261.    [Back]

Note 121    In A v A (A Minor: Financial Provision) [1994] 1 FLR 657, the house was settled on trust for the child until six months after she reached the age of 18, or six months after she finished her full-time education (which included her tertiary education), whichever was latest. See also Re P (A Child)(Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865.     [Back]

Note 122   A v A (A Minor: Financial Provision) [1994] 1 FLR 657; cf where the child is disabled and so “special circumstances” apply – Children Act 1989, sch 1, para 3(2)(b); C v F (Disabled Child: Maintenance Orders) [1998] 2 FLR 1.    [Back]

Note 123    The property will instead be held on trust by the parents (or other individuals) as trustees for the child for the duration of the order: K v K (Minors: Property Transfer) [1992] 1 WLR 530.    [Back]

Note 124    Re P (A Child)(Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865.    [Back]

Note 125    See n 113.    [Back]

Note 126    See Re P (A Child)(Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865.    [Back]

Note 127    F v G (Child: Financial Provision) [2004] EWHC 1848 (Fam), [2005] 1 FLR 261.    [Back]

Note 128    K Gray & S F Gray, Elements of Land Law (4th ed 2005) paras 11.8-11.21.    [Back]

Note 129    Miller, The Machinery of Succession (2nd ed 1996) p 111.    [Back]

Note 130    Such nominations are usually not binding on pension trustees but are rarely departed from in practice.    [Back]

Note 131    We have proposed changes to cohabitants’ succession rights in Renting Homes: The Final Report, Volume 1: Report (2006) Law Com No 297, Part 7. Under our proposals, the criteria for succession would be essentially the same, but survivorship would not constitute a succession, and a second succession would be possible in some circumstances.    [Back]

Note 132    Insurance Contract Law: A Joint Scoping Paper (2006) Law Commission and Scottish Law Commission, para 2.2.    [Back]

Note 133    If the estate is small (consisting of a net cash residue not exceeding £500) the case need not be referred to the Treasury Solicitor. There is a special procedure for estates over £500 but under £2,000. See The Treasury Solicitor Bona Vacantia Division, Guidelines for referring estates to the Treasury Solicitor (2005), available at http://www.bonavacantia.gov.uk/default.asp?PageId=1345 (last visited 4 May 2006).    [Back]

Note 134    Administration of Estates Act 1925, s 46(1(vi).    [Back]

Note 135    The Treasury Solicitor Bona Vacantia Division, Guide to discretionary grants in estates cases (2005) para 31(a). Available at http://www.bonavacantia.gov.uk/default.asp?PageId=1347 (last visited 4 May 2006).    [Back]

Note 136    The Treasury Solicitor Bona Vacantia Division, Guide to discretionary grants in estates cases (2005) para 10.    [Back]

Note 137    See para 3.92 to 3.93.    [Back]

Note 138    The Treasury Solicitor Bona Vacantia Division, Guide to discretionary grants in estates cases (2005) para 21. See, for example, Re Watson [1999] 1 FLR 878.    [Back]

Note 139    The Treasury Solicitor Bona Vacantia Division, Guide to discretionary grants in estates cases (2002) para 22.    [Back]

Note 140    In particular, if the cohabitant lived with the deceased for less than two years, and is unable to establish dependency immediately before the death.    [Back]

Note 141    See paras 3.90 to 3.95.    [Back]

Note 142    Inheritance (Family Provision) Act 1938, s 1(1).    [Back]

Note 143    Second Report on Family Property: Family Provision on Death (1974) Law Com No 61.    [Back]

Note 144    Spouses, former spouses, children, children of the family and dependants of the deceased.    [Back]

Note 145    Cohabitants: Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(ba), inserted by the Law Reform (Succession) Act 1995, s 2.    [Back]

Note 146    Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(e).    [Back]

Note 147    Re Beaumont [1980] Ch 444.    [Back]

Note 148    Jelley v Iliffe [1981] Fam 128.    [Back]

Note 149    Re Wilkinson [1978] Fam 22, Jelley v Iliffe [1981] Fam 128; Tyler’s Family Provision (3rd ed 1997) p 88.    [Back]

Note 150    Jelley v Iliffe [1981] Fam 128, 141, per Griffiths LJ.    [Back]

Note 151    Bishop v Plumley [1991] 1 WLR 582, 587, per Butler-Sloss LJ.    [Back]

Note 152    Distribution on Intestacy (1989) Law Com No 187.    [Back]

Note 153    Inheritance (Provision for Family and Dependants) Act 1975, ss 1(1)(ba), (1A) and (1B); Re Watson [1999] 1 FLR 878, Gully v Dix [2004] 1 WLR 1399, Churchill v Roach [2002] EWHC 3230 (Ch), [2004] 2 FLR 989. On the requirement of a joint household, see Kotke v Saffarini [2005] EWCA Civ 221, [2005] 2 FLR 517 (considering the equivalent provision in the Fatal Accidents Act 1976).    [Back]

Note 154    Inheritance (Provision for Family and Dependants) Act 1975, s 1(2)(b).    [Back]

Note 155    Re Coventry [1980] Ch 461, 494, per Buckley LJ.    [Back]

Note 156    Inheritance (Provision for Family and Dependants) Act 1975, s 3(4).    [Back]

Note 157    Inheritance (Provision for Family and Dependants) Act 1975, s 3(2A).    [Back]

Note 158    Inheritance (Provision for Family and Dependants) Act 1975, s 2.    [Back]

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You are here: BAILII >> Databases >> The Law Commission >> Cohabitation: The Financial Consequences of Relationship Breakdown [2006] EWLC 179(3) (04 May 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/179(3).html Cite as: [2006] EWLC 179(3)