In order to critically assess the way in which the law acts to resolve disputes between cohabitants over right in the family home, an analysis of the historical and current developments of the common law governing this area will be presented.

In Pettit legal title to the matrimonial cottage was vested solely in Mrs. Pettit, but since Mr. Pettit had carried out renovation works he sought a declaration of a beneficial interest in the property under section 17 of the Married Women’s Property Act 1882. The HL rejected this argument and held that it was not possible to infer a common intention that the husband should acquire a beneficial interest in the property merely on the fact that he had undertaken work and spent money subsequent to the purchase. So too in Gissing, the HL rejected Mrs. Gissing’s argument that, after sixteen years of marriage and having made substantial payment to furniture and renovation of the garden, she was entitled to a beneficial interest in the home which was registered in Mr. Gissing’s sole name. The HL held a beneficial interest would be derived from the commonly inferred intentions when the property was originally purchased, and not from subsequent conduct.

These cases demonstrated the rigidity of the law and the inflexible approach taken can arguably be unreal. To base the outcome of a claim on the original intentions which would inevitably be changed after months or years was somehow an erring approach. Furthermore, the law was arguably discriminated against women as at that time women were more likely to stay home and look after children while men were working outside home. In Burns v Burns the Court of Appeal (“CA”) refused to accept that the non-financial contributions could result in a beneficial interest in the property. Thus, Mrs. Burns was left with nothing but a huge sum of legal costs after nineteen years of partnership where she had raised two children, performed household duties and contributed to household expense. It would be unfair to overlook the non-financial contributions of a woman which admittedly had eased the domestic burden of the man who provided financial contributions.

However, oddly enough, in Eves v Eves, the CA was willing to find a constructive trust in favour of a woman even though the house was purchased in the sole name of a man. The reason for this was because the man had led the woman to believe that he would have put the house in their joint names if she was not under twenty-one. A woman would be entitled to a beneficial interest in the property, not because she had devoted non-financial contributions but simply of the fact that her partner had lied. It is submitted that these cases demonstrated the difficult nature of legally proving a beneficial interests in the 1970s.

Consequently, in Lloyd’s Bank v Rosset, the HL attempted to clarify this area of law. Lord Bridge stated that the first and fundamental question was whether, at any time prior to acquisition (or exceptionally at some later date), the parties had made some type of agreement or arrangement (however imperfectly remembered and however imprecise the terms) that the property be shard beneficially. If so, a cohabitant only needed to prove he or she acted to his or her detriment in order for the court to find a beneficial interest in their favour. Alternatively, where no such evidence existed the court had to rely entirely on the conduct of both parties in order to infer a common intention to share the property beneficially. This required the payment of direct financial contribution or mortgage payments, but Lord Bridge opined that it was “extremely doubtful” if anything less would do. Thus, even twenty years later, the English courts still did not recognize the significance of non-financial contributions made by cohabitants which meant that the law was significantly biased. Meanwhile in Australia, such biases were expressly recognized as in Bryson v Bryant where those who provided ‘women’s work’ over their adult life should not be condescendingly told by a mostly male judiciary that their services were legally regarded as “freely given labour” in the distribution of property interests.

Therefore, in 2002, the Law Commission (“LC”) reviewed this area of law and concluded that the current law was complicated and difficult to apply. There was ample of evidence that the courts adopted an inventive approach to discover common intention where in fact there was none. This discriminated against those who did not earn income and the principles of quantification were uncertain and inconsistent. 

In 2007, the LC conducted further view and concluded that the law continued to be complex, uncertain and expensive to rely on. It also suggested that the law often give rise to an unjust outcome in non-family circumstances. The LC concluded that the inadequacy of the law resulted in hardship for cohabitants and their children and seeing that most of the British believed that cohabitants should have access to financial relief upon breakdown of the relationship, a new system for cohabitants was recommended.

Under the new system, a cohabitant would have to show that the couple had not agreed to disapply the scheme. The applicant has to show that qualifying contributions had been made to the relationship giving rise to an enduring consequence upon separation. Couples who have children together or have been living together for certain number of years would be qualified to apply for the scheme.  However, as pointed by Dixon, the government gave little credit to the recommendation and simply disregarded it by putting it on the top shelf.

Thus, cohabitants must still revert back to the common law principles but it is clear that the law has developed far beyond the approach originally adopted by judges in the age of Burns. Whilst the law has been described as being much clearer and fairer, criticism remains. In Oxley v Hiscock, a property was transferred to the man’s sole name but both parties had contributed to the purchase price. Chadwick LJ held that each was entitled to “that share which the court considers fair having regard to the whole course of dealing between them in relation to the property”. However, in Stack v Dowden, Baroness Hale stated that the search was to “ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it”, but this did not enable the court to abandon the search which is in favour of a result which the court considers fair. Whilst Hiscock advocated a ‘Holistic’ approach the proffered a fairer analysis, Stack rejected this artificial imposition of fairness.

Stack held that the starting point was that ‘Equity follows the law’, so that sole legal ownership would presume sole equitable ownership, and the burden (which was heavey to displace) would be on the applicant to prove a different beneficial ownership. It was also held that, contrary to Rossett, more factors other than financial contributions would be relevant to searching for the parties’ true intention, including the nature of the relationships; children; how the purchase of the home was financed; and how the parties discharged outgoings and household expenses. Therefore, in theory the new approach to the settlement of disputes between cohabitants was fairer since it considers non-financial contributions by the cohabitants throughout the whole period of the relationship.

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Bibliography

Oxford University Press. (2012, 1 22). Definition for cohabit. Retrieved 22 January, 2012, from Oxford Dictionaries Online (World English): http://oxforddictionaries.com/definition/cohabit?q=cohabitant#cohabit__3

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