Failing to plan

You might be forgiven for thinking that, with the introduction of civil partnerships, the law relating to relationship breakdown amongst cohabiting couples is straightforward. It is not.

About 4 million people cohabit in England and Wales and about half of those have a child or children.

Couples who are not civil partners or married, and particularly those who fail to make wills, will be vulnerable to the uncertainties of a very difficult area of the law. It is easy to forget this and when the relationship breaks down or one partner dies, the other partner could be left high and dry or at the very least with a large legal bill to try to sort out the mess left behind.

This is what happened in the 2007 case of Stack–v-Dowden which concerned the rights of an unmarried couple who lived together until the breakdown of their relationship.

In Stack–v-Dowden the House of Lords attempted to simplify the law for unmarried couples at the breakdown of their relationship. Whilst there is no substitute for mutual wills, and (where appropriate) a pre-nuptial agreement, the following points emerged from this case:

There is a presumption where only one of the parties owns the legal title to the property that that party is the sole beneficial owner. The burden of proof falls on the other party to show that he or she has any beneficial interest in the property and if so to what extent.
Where there is joint legal ownership of the property there is a presumption that the property is owned jointly and if one of the parties wishes to show that the beneficial interests are to be divided other than equally, the onus falls on that party to establish it.
There can be a departure from these presumptions but only in certain circumstances and the House of Lords said that this was not to be lightly embarked upon.

Where there is to be a departure the question is “Did the parties intend their beneficial interest to be different from their legal interests and if so to what extent?” The court must consider the following:

Any advice or discussions at the time of the acquisition of the property which reveals the parties’ intentions at that time.
The reason why the home was acquired in joint names.
The purpose for which the home was acquired.
The nature of the parties’ relationship.
Whether they had any children for whom they both had responsibility to provide a home.
How the purchase was financed.
How the parties arranged their finances, whether separately, together or a bit of both.
How the outgoings on the property were discharged and other household expenses.

None of this provides any real certainty and there is no substitute for taking legal advice.

If you have any further queries, please contact Andrew Holt or Charles Terry.

This publication provides general information and does not constitute legal advice. You should only act after, or refrain from acting until, you have received specialist advice. © Copyright in the content of this publication is owned by Woolley Bevis Diplock LLP. It is believed to be correct as at 1 December 2009 but is subject to change. To be sure you have the most up to date information, please contact us.

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