Vardags Family Law Essay competition 2024/25 | Ameena Uddin

Ameena Uddin - University of Cambridge

Is the current law applicable to cohabitants on relationship breakdown really ‘costly, complicated and unfair’, as held by the house of commons women and equalities committee 2022?

The matter of cohabitation in England and Wales continues to garner contentious discussion: an unsurprising reality considering the number of cohabitants continues to rise steadily.(1) Within this wider context lay the dispute of how the law is to treat cohabitants upon relationship breakdown, with many calls for reform from those who view the current law as ‘costly, complicated and unfair’. As there is no specific legal framework for family assets (2) regarding cohabitants, they must turn to general property laws under the Law of Property Act 1925(LPA) and Trusts of Land and Appointment of Trustees Act 1996 (TOLATA); and where relevant the Children Act 1989(CA). Ultimately, throughout this essay, I will evaluate that these laws have indeed notoriously been the basis of much confusion and unpredictability due to their complexity; have caused unfairness due to the terms of applicability being mostly monetary; and have fostered economic loss via expensive litigation.

It must be recognised that complexity, unfairness, and cost stem from the fact that the currently applicable laws were never initially formulated for cohabitants. Property laws were altered in the late 20th Century for spouses (3), and presently these alterations find significance related to cohabitants instead.(4) Moreover, they were developed when the model relationship was that of the male breadwinner with sole legal title. Modernity has not followed suit: Haskey found that, among cohabitants who held legal ownership, a third were both men and women.(5) Resultantly, old property laws altered for spouses have remained foundational to laws applicable to cohabitants and have been abridged in an ad-hoc (6) manner, leading to complex laws, antiquated unfair outcomes and costly litigation. However, Hayward posits that via the process of ‘familialisation’ general property law principles have grown to adapt to modern changes in the family dynamic, using the example of how the common intention constructive trust (CICT) was streamlined in Stack based upon an acknowledgement of the unique nature of domestic affairs. One may therefore argue that complexity, unfairness, and cost are being remedied by familialisation, as the courts increasingly modify property laws in satisfaction of domestic concerns. However, I doubt that the ‘exclusionary’ (7) ideology of property law can ever be altered sufficiently to combat complexity, unfairness and cost given the hugely varied nature of cohabitants.(8)

The Current law

Beneficial interests are decided by the court in an application under TOLATA. There are two stages: establishing interests, and quantification. If there is no valid declaration of trust,(9) resulting, implied and constructive (10) trusts may apply. Resulting trusts, which require direct monetary contributions to the property’s acquisition, granting proportional interests, are not presumed for cohabitants: the CICT is favoured (11) as domestic matters are fact specific.(12) The court will thereby consider a cohabiting couple’s intentions related to beneficial interests and while this standard seems holistic, the CICT evidently causes unfairness, complexity and expense.

Establishing interests

Unfairness in the current law can be found when assessing the terms for establishing beneficial interests under a CICT. A CICT may arise for the cohabitant where there is an express agreement, with evidence that the claimant has acted to their detriment or in reliance upon this agreement.(13) Detriment requires conduct that would not have ‘reasonably’ (14) been done unless to gain a proprietary interest. According to Lloyds Bank v Rosset,(15)  this threshold ousts non-monetary contributions, which are often done by the female cohabitant, such as domestic spending.(16) Where there is no express agreement, requirements are onerous: there can only be an inference of intention where there are direct monetary contributions to the property’s acquisition, and it is ‘extremely doubtful’ (17) whether less will do.

Evidently, both tests necessitate some form of ‘monetary contribution’, actively disregarding non- monetary contributions. Unfairness lay in the truth that many women in cohabiting relationships still take on roles which only allow them to make contributions comprising of the latter (18) - meaning they are disproportionately disadvantaged when establishing interests. The totemic (19) case of Burns is a prime example of the unfairness suffered by women due to the devaluation of non-monetary contributions: the court outwardly dismissed her efforts accumulated over almost 20 years as being ‘mere’ domestic tasks, worth nothing proprietary. Such an approach is especially unjust considering how paradoxical it is to condemn discrimination between spouses,(20) but not cohabitants. One could argue that this distinction is necessary to maintain the promotion of stable marital unions, versus oft short lived and unstable cohabitating relationships.(21) But why should cohabiting women suffer a greater burden than men for the sake of maintaining marriage? Probert writes that the current law should be appreciated as it respects that the parties have chosen to be assessed on these contributions,(22) however I disagree: the autonomy of the parties does not excuse the inadequacy of the law, especially considering the high prevalence of the common law marriage myth- have cohabitants really chosen these consequences? Therefore, the current law for acquiring interests on relationship breakdown is unfairly gendered against female cohabitants.

Quantifying interests

However, some would argue that the law is not so unfair, complex, nor costly as it seems for cohabitants on relationship breakdown, considering how shares are presumed to be proportioned equally in the quantification stage where there are joint legal owners under a CICT.(23) This presumption can be rebutted only on ‘very unusual’ (24) facts where it can be proven by the party seeking to depart from equality that there was a common intention against equality. The quantification stage therefore seems fair as equality is tough to rebut;(25) is less complex given the automatic presumption; and is less costly due to being predictable. However, one may argue that it is not truly fair: though Baroness Hale listed a multitude of factors to consider (26) in Stack, the final decision prioritised the wife’s monetary contributions foremost, and the fact that Lord Neuberger used the resulting trust to come to the same conclusion urges questions as to the usefulness of this presumption. There are also multiple sources of complexity. The extent to which Stack was ‘unusual’ is questionable: cohabitants often ‘rigidly’ separate their assets and finances.(27) Moreover, the complex process of imputing intentions (28) is allowed here, causing confusion and potential unfairness as parties may have intentions imposed upon them which they never had. These matters will concurrently be a source of costly litigation as cohabitants remain unsure as to whether the presumption will apply to them or not. Therefore, all three of cost, complexity and unfairness are present in the current law at the quantification stage.

Children act

Schedule 1 of the CA provides some protection for cohabitants if their relationship breaks down through providing for the children of the relationship, however, the powers here are unfair on two grounds. First, whereas children of spouses and CPs can receive generous, ongoing provisions, cohabiting partners’ children receive less substantial provisions which do not extend past minority. Additionally, it is applicable primarily to wealthier cohabitants, since the CMS retains jurisdiction unless the payer earns above £156,000PA. Therefore, the CA as one of the current remedies available on relationship breakdown, is unfair.

Conclusion

After careful analysis, it is undeniable that complexity, unfairness, and cost issues are present in the current laws applicable to cohabitants on relationship breakdown- though I do not deny that familialisation has dampened this reality to an extent. As the government rejected the WECs endorsement of recent reforms, having determined that they must deal with the ‘apocalyptic’ (29) state of divorce law foremost, we can only eagerly await the outcome of the 2021 Cohabitation Rights Bill for providing a potential remedy.

For expert family law advice, click below for a free initial consultation with one of our solicitors.

BOOK FREE CONSULTATION

Bibliography

(1) Office for National Statistics, Families and Households in the UK: 2019 [2019] https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/famili esandhouseholds/2019

(2) Pettitt v Pettitt [1970] AC 777; Gissing v Gissing [1971] AC 886

(3) Andrew Hayward, ‘Family Property and the Process of Familialisation of Property Law’ [2012] 24 CFLQ 284, p 288

(4) Nigel Lowe and others, Bromley’s Family Law (12th edn, OUP 2021) ch 4, p111

(5) Gillian Douglas, Julia Pearce, Hilary Woodward ‘A failure of Trust: Resolving Property Disputes on Cohabitation Breakdown’ [2007] Cardiff Law School Research Paper No.1, https://orca.cardiff.ac.uk/id/eprint/5186/1/1.pdf accessed 25th November 2024, p16

(6) Hayward (n3) p302

(7) Ibid p284

(8) Anne Barlow and Janet Smithson, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’ [2010] CFLQ 328

(9) Law of Property Act 1925 (LPA 1925), s 53(1)(b)

(10) LPA 1925, s 53 (2)

(11) Jones v Kernott [2011] UKSC 53

(12) Stack v Dowden [2007] UKHL 17

(13) Lloyds Bank plc v Rosset [1991] 1 AC 107

(14) Grant v Edwards [1986] 3 WLR 114, Nourse LJ

(15) [1990] UKHL 14

(16) Midland Bank v Cooke [1995] 4 All ER 562

(17) Rosset (n 15), Bridge LJ

(18) Robert Leckey, ‘Cohabitation, Female Sacrifice and Judge-Made Law’ [2019] 41(1) Journal of Social Welfare and Family Law 72-91

(19) Fran Wasoff, Enid Mordaunt and Joanna Miles, ‘Cohabitation: Lessons from Research North of the Border’ [2011] 23 CFLQ 302

(20) White v White [2000] 2 FLR 976

(21) Harry Benson, ‘Married poor more stable than unmarried rich’ [Marriage Foundation, 2022] https://marriagefoundation.org.uk/research/married-poor-more-stable-than-unmarried-rich/ accessed 23rd December 2024

(22) Rebecca Probert, ’Trusts and the Modern Woman - Establishing an Interest in the Family Home’ [2001] 13 CFLQ 275

(23) Stack (n 12)

(24) Ibid 69

(25) Fowler v Barron [2008] EWCA Civ 377

(26) Stack (n 12) 69

(27) Office for National Statistics, ’Families and Households in the UK: 2020’ (2021) https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/famili esandhouseholds/2020 accessed 10 December 2024

(28) Kernott (n 11) 72

(29) Jane Croft, ’Review of UK divorce law imminent’ [Financial Times, 31 March 2023] https://www.ft.com/content/9e0f65e4-d024-42ba-8ed8-8b3972fd9113 accessed 23rd December 2024

Cases

• Fowler v Barron [2008] EWCA Civ 377
• Grant v Edwards [1986] 3 WLR 114
• Gissing v Gissing [1971] AC 886
• Jones v Kernott [2011] UKSC 53
• Lloyds Bank plc v Rosset [1991] 1 AC 107
• Midland Bank v Cooke [1995] 4 All ER 562
• Pettitt v Pettitt [1970] AC 777
• Stack v Dowden [2007] UKHL 17
• White v White [2000] 2 FLR 976

Legislation

• Law of Property Act 1925
• Trusts of Land and Appointment of Trustees Act 1996
• Children Act 1989

Other

• Barlow A and Smithson J, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’ [2010] CFLQ 328
• Benson H, ‘Married poor more stable than unmarried rich’ [Marriage Foundation, 2022]
• Croft J, ’Review of UK divorce law imminent’ [Financial Times, 31 March 2023]
• Douglas G, Pearce and Woodward H, ‘A failure of Trust: Resolving Property Disputes on Cohabitation Breakdown’ [2007] Cardiff Law School Research Paper No.1
• Hayward A, ‘Family Property and the Process of Familialisation of Property Law’ [2012] 24 CFLQ 284
• Leckey R, ‘Cohabitation, Female Sacrifice and Judge-Made Law’ [2019] 41(1) Journal of Social Welfare and Family Law 72-91
• Lowe N and others, Bromley’s Family Law (12th edn, OUP 2021)
• Office for National Statistics, ‘Families and Households in the UK: 2019’ [2019]
• Office for National Statistics, ’Families and Households in the UK: 2020’ [2021]
• Probert R, ’Trusts and the Modern Woman - Establishing an Interest in the Family Home’ [2001] 13 CFLQ 275
• Wasoff F, Mordaunt E and Miles J, ‘Cohabitation: Lessons from Research North of the Border’ [2011] 23 CFLQ 302