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Vardags Family Law Essay competition 2023/24 | Aliya Mohamad Asif

Aliya Mohamad Asif - University of Bristol


This essay contributes to the ongoing debate as to whether form can and should continue to legitimise the laws dissimilar treatment of cohabiting and married couples (more rigidly towards the former) as they become increasingly difficult to distinguish in their function. This discussion focuses on a particular aspect of the debate, namely the law concerning the family home of cohabitants upon a relationships breakdown in single-name cases, and if its cost and complexity relative to matrimonial law is ever fair. A critical analysis of this legal issue will be undertaken in two sections: (i) Constructive Trusts: A Costly and Complicated Affair which considers the labyrinth of legal principles and rules relating to the acquisition and quantification of shares; and (ii) Cohabitants and The Choice to Remain Unmarried which appeals to autonomy- based arguments to defend the current legal framework applicable to cohabitants despite its perceived unfairness, and to reject any case made in favour of extending any relevant rights protected under the matrimonial law to them.

Constructive Trusts: A Costly and Complicated Affair

Unlike married couples who fall under matrimonial laws jurisdiction, enabling courts to award a former spouse a share in the matrimonial home notwithstanding the fact that it was registered in the other spouses sole name, a cohabitant must rely on the stringent rules of land law to establish that they own a share in the home: either held on trust for them under an express trust or an implied constructive trust, or proving that a proprietary estoppel can be raised. The second approach – relying on an implied constructive trust – provides the basis for the forthcoming analysis.

In order to reach its decision, courts must embark on a two-stage exercise comprising of the acquisition and quantification stages. In single-name cases, there must be evidence of express discussions or conduct capable of inferring a mutual intention between the cohabitants to beneficially share in a house for a party to satisfy the initial acquisition stage. Generally, any conduct falling short of direct financial contributions to the propertys purchase price is inadequate. However, in exceptional cases, it was held that a partners contribution to the homes renovation could sufficiently demonstrate such common intention if the money expended in the course of it represents a very substantial portion of their assets. Furthermore, the contention that it was intended as a gift was rejected by the court as it would have left that individual without a home. Nevertheless, it remains the case that renovation work undertaken by a cohabitant without legal title in the home is a natural undertaking incapable of inferring the necessary common intention. That the courts have failed to offer any satisfactory explanation for the divergent approaches taken in these cases leaves this area of the law muddled and judges faced with an arduous task, with cohabitants left in great uncertainty.

Regarding the subsequent quantification stage, in single-name cases, the size of the cohabitants shares are derived from their common intention which the courts must deduce objectively from their conduct in relation to the property. As the presumption of a resulting trust is unpopular in the domestic context, courts are left with a challenging undertaking as they may no longer utilise a more simple and straightforward method of calculating the shares to be awarded in direct proportion to the cohabitants respective contributions. Furthermore, while the ability to consider a broader range of financial contributions at this stage such as household expenses illustrates the common laws benevolent aspirations to introduce fairness and flexibility, it merely exacerbates the difficulty for courts as expenses of this nature are seldom made with any intention other than financial convenience. Where such indirect or direct monetary contributions are drawn out of a joint account – common due to the financial interdependence of cohabitants – this intermingling of monies adds another layer of complexity given that judges must now endeavour to discern the precise amount attributable to the individual parties, therefore increasing litigation costs. Even if the parties had kept their finances separate, it is equally tedious and difficult for courts to undertake a comprehensive analysis of their financial arrangements and recreate them with accuracy. Because of this, and land laws efforts to mimic the flexibility and fairness of matrimonial law for the benefit of domestic contexts, as well as the maxim that equity follows the law, a presumption of equal shares is difficult to rebut and only successful under exceptional cases in joint-name cases.

The outcome of such litigation is far from certain and highly case specific, leading solicitors to commonly seek advice from barristers which increases the litigation costs and duration. In sharp contrast, the right of former spouses to the matrimonial home may cause envy for their unmarried counterparts who look on, since matrimonial law enables courts to exercise wide- ranging powers, whereas its capabilities are necessarily limited however much judges try to push the flexibility of land law. The emphasis on intentions, direct financial contributions and quantifiable labour for cohabitants places an expectation on individuals to act rationally, even though these matters are rarely given much contemplation to because of the familial trust between cohabitants and the potential for any such discussions to create distrust in a relationship since it hints at the possibility of separation in the future. Furthermore, individuals in a relationship do not completely have a free hand in who gets to make the direct monetary contribution as financial arrangements are made on the basis of the convenience of their current circumstances, as previously noted. Socio-economic factors normally drive women to reduce or give up paid work to assume childcare, leaving them to contribute to the family units wellbeing as a homemaker or by way of smaller, indirect financial contributions, in which case land law does not recognise the former, and the latter is challenging to reflect in the quantifying of shares as argued above.

In light of the foregoing though, it cannot be concluded that the law is unfair since more adequate protection is afforded by matrimonial law and this is attainable through a legally recognised marriage. The paramountcy of fairness and equality in the courts approach under this legal framework is evident in the fact that there is no discrimination against the homemaker as opposed to the breadwinner, and judges may choose from variegated property orders for the benefit of a former spouse in their own right instead of solely for their childrens sake (which is limited in any case for cohabiting couples and almost certain to generate housing insecurity for one parent in the future). The question then remains: why do people choose to not get married?

Cohabitants and The Choice to Remain Unmarried

Barlow has identified four classes of cohabitants: (i) ideologues; (ii) pragmatics; (iii) romantics; and (iv) uneven couples. The first class opposes marriage as an anachronistic institution that perpetuates and symbolises patriarchal values in the family unit. Yet, this argument is meritless as matrimonial law strives to promote equality and fairness, and where inequalities are perceivable in marriages, cohabiting relationships are equally susceptible to them. Additionally, symbolic matters such as a father giving the bride away as a sign of ownership passing between him and her husband are purely cultural and may be dispensed with as the parties desire. Thus, blame that is properly ascribable to individuals and cultural norms have been misplaced on marriage as a concept. In relation to the pragmatics who will marry if they see any benefits in doing so, it is very likely that they have been ensnared by the common law marriage myth and so have chosen not to get married. The antidote for this is to launch an extensive public awareness campaign. Some have argued that it is incredibly difficult to dispel, because it is so deeply embedded in society; however, it is not impossible to undo this by utilising all medium of communication, including the media which is readily accessible today by almost everyone. After all, these same resources have played an important role in (successfully) spreading the myth to begin with.

On the other hand, romantics are holding out for the perfect wedding, and it is therefore irrational for the law to extend marriage-like rights to these cohabitants when the decision to postpone getting married is based merely on fanciful desires rather than actual barriers. Lastly, where uneven couples are concerned, it is asserted that one partner may not be able to persuade the other to marry and accordingly is left unprotected, though not out of their own choice. However, it is their duty to seriously consider the (legal) consequences of remaining unmarried before making a big personal commitment to cohabiting and intertwining their lives as it is not befitting of the law to interfere with ones personal autonomy and force individuals into what is essentially a marriage in terms of its legal consequences, but only without having to go through the legal formalities. Otherwise, they may legally formalise certain rights such as having a beneficial share in the home by creating an express trust, though again a different set of laws apply here and not matrimonial law. If one partner still wishes to be protected by matrimonial law and the other resists it, unfortunately they must reap the unsavoury fruits sown from the seeds of their haphazardness and lack of proper planning – to remain in or leave the relationship. Moreover, there are couples who cohabit as a means of a trial before marriage or to avoid messy and costly divorces should they part ways. Admittedly, these arguments tilts the scale heavily in favour of more legally knowledgeable individuals, and in particular have caused some to claim that the arguments of autonomy are undermined altogether as so many couples have bought into the common law marriage myth. Consequently, there was never any real autonomy from the outset. Cited as a principal factor for impeding marriages, the cure hence calls for increasing public legal awareness on such a key issue prevalent to normal life, as opposed to implementing a regime of rights that will render cohabitation more like marriage and not just weaken…but destroy it.

Conclusively, the greater level of protection afforded by the law to spouses in comparison with cohabitants is legitimately justified by the legally formal consent spouses make to mutual obligations, financial or otherwise towards each other. Legislators are therefore wary of imposing obligations on adults where there is no formal marriage or contract. There is no real barrier to getting married, hence cohabitants should do so if they desire the considerable security provided by matrimonial law. Alternatively, if they want to remain in a cohabiting relationship but recognise the importance of housing (and other financial) security, they should create cohabitation contracts which are enforceable by the courts. Albeit it is true that legal norms should remain in step with evolving social standards, this does not mean legislating for norms which are continually developing, when there are existing laws that satisfactorily deal with them.

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Table of Cases

Arthur Aspden v Joy Marie Elvy [2012] EWHC 1387 (Ch), [2012] WL 1854383

Bernard v Joseph [1982] Ch 391 (CA)

Gissing Appellant v Gissing Respondent [1971] AC 886 (HL)

Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776

K v L [2011] EWCA Civ 550, [2012] 1 WLR 306

Lloyds Bank Plc. Appellants v Rosset and Another Respondents [1991] 1 AC 107 (HL)

Miller v Miller [2006] UKHL 24, [2006] 2 AC 618

Oxley v Hiscock [2005] Fam 211 (CA)

Pettitt Appellant v Pettitt Respondent [1970] AC 777 (HL)

Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326

Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432

T v S (Financial Provision for children) [1995] Fam. Law 11

WC v HC (Financial Remedies Agreements) (Rev 1) [2022] EWFC 22, [2022] 4 WLR 65

Table of Legislation

Law of Property Act 1925 Matrimonial Causes Act 1973

Trusts of Land and Appointment of Trustees Act 1996


Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007)

Law Commission, Eighth Programme Of Law Reform (Law Com No 274, 2001)

Women and Equalities Committee, The rights of cohabiting partners (HC 2022-2023, 92)

Barlow A and James G, Regulating Marriage and Cohabitation in 21st Century Britain (2004) 67

Mod L Rev 143

Barlow A and Smithson J, Legal assumptions, cohabitants talk and the rocky road to reform (2010) 22 CFLQ 328

Bennett C, Living together? Beware, the states set to move in too The Guardian (13 November 2011 accessed 25 April 2023

Brown S and Booth A, Cohabitation versus Marriage: A Comparison of Relationship Quality (1996) 58 Journal of Marriage and the Family 668

Gardner S and Davidson K, The future of Stack v Dowden (2011) 127 L.Q.R. 13

Lyonette C, Sharing the load? Partners relative earnings and the division of domestic labour

(2015) 29 Work, Employment & Society 23

Miles J and Probert R, Civil partnership: ties that (also) bind? (2019) 31 CFLQ 303

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