"For my part, I do not think that the time has yet arrived when it is possible to state the law in a way which will deal with all the practical problems which may arise in this difficult field, consistently with everything said in the cases." - Discuss

Lord Bridge’s criteria are called into inquiry with reference to what previous authorities was the basis for this narrow approach? Both cases held that the level of contribution was sufficient so as to infer a common intention. In Grant v. Edwards, the claimant had made a substantial contribution to housekeeping expenses, which was held to be sufficiently so as to infer a common intention. Nevertheless and in total disregard to these outcomes, Lord Bridge concluded that the conduct of neither of the claimants had been sufficient to infer a common intention.

Therefore, it can be concluded that “Lord Bridge considers little reference to take an individual view of the circumstances of each case to decide whether it is just to grant a beneficial interest”, rather the contribution must be direct, no form of indirect contribution however substantial will constitute grounds for a beneficial interest. In Burns v. Burns, the claimant was only denied a beneficial interest because she had not in fact made any such indirect contributions. Consequently, it appears Lord Bridge does not appreciate Lord Diplock’s statement 

The nature of Lord Bridge’s second category begs the question of his intentions. The exclusion from a share to a beneficial interest for a person whose contributions are indirect clearly will have prejudicial ramifications. The courts should be concerned in striking a balance between claims of minor contributions and substantial contributions. Therefore, to adopt Lord Bridge’s approach of searching for ‘artificial’ common intentions and to completely disregard substantial indirect contribution indicates a lack of understanding to the practicality and reality of the needs of modern cohabitants. Perhaps the claimant should rely on ‘proprietary estoppel.’ The distinction between estoppel and constructive trust is blurred, as found in Lloyd’s Bank v. Rosset. However, it is not extinct, and requires only that “it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment.”

Remaining problems & uncertainties in the law

  Legal implications can arise where couples cohabit together outside marriage. In some cases, rights and obligations can come into existence without either party realizing it.

“The law governing property rights of cohabitants has been widely criticized for its inadequacy and inconsistency. Perhaps the most serious flaw of the current law governing the allocation of property after the breakdown of an unmarried partnership

Complexities surround the fact that legislation to date has no significance to relation other than marriage. Subsequently, ordinary equitable rule of law applies, which demands that the acquisition of property in land be made by written agreement, deeds, or contracts. Cohabitants do not always see this. In conclusion to this matter, constructive, resulting and implied trust of land do not therefore require they’re to be a written agreement between the parties when acquiring property. These rules have been seen in Lloyd’s Bank v. Rosset. The effect of this is a sense of prejudice against the party not earning an income and bias towards the person who is. Furthermore, these strict rules are not in line with the reality of modern cohabitation and as a consequence their application becomes inconsistent.

There may be said to be two main reasons for this problem surrounding the application of these rules, as are outlined by one critic:

“…there may be a marked degree of informality in the way the parties have arranged their shared private life. A relationship based upon trust does not provide national environment for express discussion about legal formalities.”

   The Law Commission Paper indicated the concern of land and a plan of action in the law governing property rights of cohabitants. The report attempts to address these problems by devising a scheme that would determine when a person who was not the owner of the home obtained an interest in it, and also what values of that share would be. The conclusion from this report is that we are not closer to an equitable solution in solving inherent complexities in this area of law.

The reason for the Commission’s failure was that they were unwilling to grasp the extent of the social changes without society: thousands of people are cohabiting outside marriage today.

  However, the Commission tried to apply their view of the law, which can lead to unfairness; this is because it lacks structure and coherence. There is no confidence in a solution of this report, so much so that the Commission, who are aware of the problems, is reluctant to make further proposals in this area.

So what problems with the law has the Law Commission highlighted? The problems are rooted in the judicial approach of trying to lay down a uniform strategy for the determination of beneficial interest in the home. Extensive variations exist in the approach from one precedent to another, each trying to maintain a sense of justice for those claiming, while at the same time not wishing to depart from arguably outdated precedent. Arguably, both cannot succeed.

   Furthermore, where couples are in a same-sex cohabiting relationship, the law imposes no commitment or obligation upon them. In the event of death, sickness or separation, therefore, legal remedies are uncertain and complex. Moreover, it is not stated in law, that in the event of selling the ‘Family Home’ the defendant should not be able to avoid representation and that as such the claimant’s interest should be binding a third party, without notice in the case of unregistered land, or as an overriding interest under Schedule 3, s.29 (3) (a) (ii), if the claimant is in actual occupation.

The Solution

  In conclusion, the point made by Mustill L.J is correct in assertion that there is no clarity in this area of law, since the issue of the ‘Family Home’ involves a number of complexities, with regard to cohabitants. Cohabitants have been given legal rights in many jurisdictions. Thus England again lags behind other jurisdictions.

  One would suggest that the MCA 1973 should be extended to cohabitees, but this approach would not help in cases of two friends buying a house and living together, or co-habiting same-sex couples.

   Furthermore, there is the possibility to use pre-nuptial agreements or the distributions of property in the family have. But the document fails to deal with the issue of same-sex couples. The Law Commission paper covers not only unmarried couples, but also, same sex-couples, friends, relatives and others who may be living together. The paper recommends that those entering into home shares should seek legal advice and the courts should adopt a flexible attitude towards the types of contributions that will lead to a share in the beneficial ownership. But while accepting the unsatisfactory state of law, the Law Commission does not think it is possible to devise a statutory scheme for ascertaining and quantifying beneficial interest across the range of home sharing situations.

   This in contrast, as the Law Commission accepts, to the approach in a number of other jurisdictions, and with ideas put forward in a paper published in 2002, it examines a wide range of issues relating to cohabiting people either same or opposite-sex couples.

The Law Society believes that the current law affecting cohabitants fails to provide them with adequate protection, particularly on relationship breakdowns, and therefore should be reformed. Hence, any reform of the law should provide both same-sex and opposite-sex cohabitants with protection after a set time during which the relationship has continued or if the parties had or adopted a child.

   More so, same-sex cohabitants should be entitled to register their relationship; acquiring the same rights and responsibilities towards their parties as would be acquired on marriage and divorce.

The law relating to tenancies should be modified to place opposite-sex and same-sex cohabitants in the same position, with regards transfer of and succession to tenancies. Cohabitant’s contracts should have the same evidential value as pre-nuptial contracts. Furthermore, same-sex cohabitants should be entitled to make application for provisions on death under the Inheritance Act 1975, according to the same intention as apply to opposite-sex cohabitants.

   An attempt to provide solution in this area was contained in the Civil Partnership Bill, which introduced the concept of the civil partnership under which two cohabitants would be able to sign and register a declaration of civil partnership. This registration would be open to same-sex and opposite-sex cohabitants, and would also be open to couples, whether they were involved in a sexual relationship or not. After the declaration, the parties would have similar rights and obligations to married couples. The bill also sets out provisions relating to ‘property agreements’ made between the partners under which the parties would agree their respective entitlement to the property and this would be conclusive evidence of the matters covered by it. However, the bill fails to be law.

   Section 1(3) (2) may prove useful for same-sex couples as in the previous act; the valuable consideration included marriage. Under LRA 2002, marriage is no longer requirement, proving beneficial to same-sex couples.

What is paramount is the Government has announced it will publish a report and bill extending to rights of same-sex couples who co-habit. Thus, gay and lesbian relationship will be covered. However, it is clear that the provisions will not be extended to opposite-sex couples.

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Bibliography

Textbooks –

Jill E. Martin. Modern Equity. 16th Ed. Sweet & Maxwell. 2001

Paul Todd and Sarah Lowrie. Textbook on Trusts. 5th Ed. Blackstone’s. 2000

Robert Pearce and John Stevens. The Law of Trust and Equitable Obligations. 3rd Ed. Butterworths. 2002.

Judith-Anne Mackenzie & Mary Philips. Textbook on Land Law. 9th edition. Oxford 2002.

A.J. Oakley. The Modern Law of Trust. 7th Ed. Sweet & Maxwell. 1999.

Meryl Thomas. Blackstone’s Statute on Property Law. 10th edition. 2003-2004

Articles –

‘When is a House Not a Home? Cohabitants and the Human Rights Act 1996’. Leslie Turano & Stephanie Palmer. Sweet & Maxwell. 2001.

‘Sharing Homes’ – A Discussion Paper’. The Law Commission (Law Com. No. 278). November 2002.

Law Society: ‘Cohabitation,’ July 2002

‘Supporting Families: Government’s Consultation Document’ published on 5 Nov. 1998

Journals –

S. Gardener. ‘Rethinking Family Property’ (1993) 109 LQR 263;

N E Glover & P N Todd, ‘The Myth of Common Intention’ (1996) 16 LS 325.

J.Warburton, ‘Trusts, Common Intention, Detrimental and Proprietary Estoppels’, (1991) Trust Law International, at pg 11.