AN INTRODUCTION TO FAMILY LAW
Chapter 8 - COHABITEES
Introduction
Reference has already been made elsewhere to some of the ways in which family law operates differently in relation to cohabitees or former cohabitees, as against couples who are or were married. See, for example, the section on parental responsibility in Chapter 3 and Chapter 6 on domestic violence. In other areas the law operates in essentially the same way irrespective of whether or not the parties are or were married, for example other aspects of children private law (Chapter 3) and child maintenance (Chapter 5). The primary area in which the law operates differently that is not mentioned elsewhere is the area of property, and that is what will be dealt with in this chapter. Having said that, the first section of this chapter will deal with Schedule 1 Children Act claims, which may be made by a married parent and do not therefore relate solely to cohabitees. However, married parents will obviously usually use the ancillary relief powers of the divorce court to resolve property matters. Accordingly, Schedule 1 Children Act is used predominantly by cohabitees or former cohabitees, hence its inclusion in this chapter.
Schedule 1 Children Act Claims
1. Residence
Obviously, what follows assumes that it has already been determined with which party the children will primarily reside. If this has been agreed, then the ‘no-order' principle means that there will usually be no residence order. If it has not been agreed then one party or the other (or both) will need to apply for a residence order, and that application will often be consolidated with the Schedule 1 Children Act application, and heard together with that application.
2. Orders available
The court can either make an order ‘requiring a settlement [1] to be made for the benefit of the child … of property to which either parent is entitled', or to transfer [2] that property to the applicant for the benefit of the child, or to the child himself. In practice, the most common type of order is one allowing the residential parent and child to occupy the property exclusively, until such time as the child grows up or ceases full-time education. Such orders do not have any bearing upon the ownership of the property. Accordingly, if the property belongs solely to the non-residential parent, then it will revert to that party when the order has run its term.
(The court can, of course, also make periodical payments orders [3] (where it has jurisdiction) and lump sum orders [4] requiring, for example, that a lump sum be paid to be used to purchase housing for the child, but these will not be considered for the purposes of this chapter, save for illustrating the application of the matters to which the court should have regard, below.)
3. Factors taken into account
The factors that the court takes into account when deciding whether to make one of the above orders are set out in paragraph 4(1) of the Schedule. The court must have regard to all the circumstances, including the following:
- (a) the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) [essentially the parents] has or is likely to have in the foreseeable future;
- (b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
- (c) the financial needs of the child;
- (d) the income, earning capacity (if any), property and other financial resources of the child;
- (e) any physical or mental disability of the child;
- (f) the manner in which the child was being, or was expected to be, educated or trained.
I do not propose to go through each of these matters in detail. The determining factor is the needs of the individual child, in the light of the available resources. So, for example, in Re P (Child: Financial Provision) [5] the father was extremely wealthy and the court awarded £1 million for a home to be purchased in central London. Similarly, comparability of living standards may be relevant, so that the residential parent (and child, of course) may be raised to the level of the non-residential parent [6]. This article, however, is considering the issue of the occupation of an existing property, i.e. the property in which the parties formerly cohabited. Accordingly, such considerations as standard of living are less relevant – in many cases it simply boils down to a question of whether there are resources available for suitable alternate accommodation to be obtained for the child and, if not, whether there are sufficient resources available to enable the residential parent and child to continue to reside in the existing property. Thus, if the non-residential parent can show that if the property were sold and the net proceeds divided then the residential parent would still have sufficient resources to enable them to purchase suitable alternative accommodation for themselves and the child, the court may make an order for sale. Even if there were not sufficient resources to purchase suitable alternative accommodation, an order for sale may still be made if the non-residential parent can demonstrate that the parties cannot afford to keep the existing property – the order for sale would make the residential parent unintentionally homeless, and thus eligible for immediate re-housing by the local authority.
However, in most ordinary cases (I would submit) there are no other resources available to purchase suitable alternative accommodation and it is possible for the residential parent to remain in the property. In such cases, the likelihood is that the court will make an order allowing the residential parent and child to occupy the property exclusively, until such time as the child reaches eighteen or ceases full-time education, whichever is the later, as I mentioned above.
Most of the reported cases involve non-resident parents (usually the father) of very high means, but a case that involved somewhat more modest means was N v D [7], and this serves as a useful example of some of the principles involved in more ‘ordinary' cases. Here, the parties had lived together for 17 years and had a 14 year old daughter. It had already been agreed that the mother and daughter would continue to reside in the former family home until the daughter grew up, with the father retaining a 20% deferred interest. However, the mother also sought a lump sum and periodical payments for the child (for which the court had jurisdiction, as the father now lived abroad). Awarding a lump sum of £45,000 (for refurbishment of the property, white goods and a car) and maintenance of £4,000 per month, the district judge held that the court had to consider the reasonableness of the amount claimed for the child's benefit, and having determined what was a reasonable amount, had to consider whether it was reasonable for the father to pay that amount, guarding against unreasonable claims made on behalf of the child, but with the disguised aim of providing for the mother, rather than the child. On the other hand, the residential parent's financial needs could be taken into account, as well as the manner in which the child had been brought up. Here, the sums ordered were considered to be reasonable, and were well within the father's means to pay.
4. Procedure
Application is made to the High Court or a county court on Form C1 (the application) and supplemental Form C10 , supported by a Statement of Means, in Form C10A . The applicant must lodge one set of forms for the court, together with an additional set for each respondent. The fee payable is currently £175. The court will then issue the application and provide the applicant with a set of forms, including a Form C6 notice to parties and a Form C7 acknowledgement. The applicant must then serve all documents with the respondent, and file a statement of service with the court. The respondent should complete the acknowledgement within 14 days of service, file it with the court and serve a copy upon the applicant.
The court will fix an initial directions appointment. However, the exact procedure thereafter is likely to differ from court to court, and from one case to the next (for example, depending upon whether there is also a residence application pending – see above). Note that applications are not governed by the same rules as ancillary relief applications. However, the Court of Appeal has indicated the desirability of the parties agreeing to exchange Form Es, and that questionnaires should be exchanged, and an FDR-style hearing encouraged [8].
[1] Children Act 1989, Schedule 1 paragraph 1(2)(d) .
[2] Children Act 1989, Schedule 1 paragraph 1(2)(e) .
[3] Children Act 1989, Schedule 1 paragraph 1(2)(a) .
[4] Children Act 1989, Schedule 1 paragraph 1(2)(c) .
[5] [2003] 2 FLR 865.
[6] F v G (Child: Financial Provision) [2005] 1 FLR 261.
[7] [2008] 1 FLR 1629.
[8] See
Morgan v Hill [2007] 1 FLR 1480 .
PROPERTY DISPUTES
Introduction - Legal Estate and Beneficial Interests
Ownership of land takes two forms: ownership of the legal estate and ownership of the beneficial (equitable) interest.
If a property is conveyed into the name of one party then the other party cannot claim to be entitled to the legal estate. If a property is conveyed to two (or more) people then they will hold the legal title as joint tenants.[1]
However, the position in equity is of more importance than the legal ownership. For example, the fact that one person is the sole legal owner does not mean that they are entitled to the property, as it is the beneficial owners who would be entitled to the proceeds of sale if the property were sold.
The question, therefore, is: who is entitled to the beneficial interests? The answer to this depends upon whether or not there is an express declaration as to the interests.
In the absence of fraud or common mistake, an express declaration of beneficial interests will usually be conclusive of the parties' beneficial interests.[2]
As to the position where there is no express declaration, see the next section.
[1] Law of Property Act, s.36(2) .
[2] See, for example,
Goodman v Gallant [1986] 1 FLR 513 .
No Express Declaration of Interests: The Starting-Point
This was set out by Baroness Hale in Stack v Dowden [1]:
"...the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all. In joint ownership cases, it is upon the joint owner who claims to have other than a joint beneficial interest."
So, the burden of showing that the beneficial interests are different from the legal ownership lies with the person who is seeking to show that they are different. What sort of factors will have a bearing? Baroness Hale again [2]:
"Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties' true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties' relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties' individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection... This is not, of course, an exhaustive list. There may also be reason to conclude that, whatever the parties' intentions at the outset, these have now changed. An example might be where one party has financed (or constructed himself) an extension or substantial improvement to the property, so that what they have now is significantly different from what they had then."
Where the legal title was conveyed into joint names the burden of showing that the beneficial interests differ from the legal ownership is a heavy one. As Baroness Hale stated [3]: "At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual."
The next parts of this this topic will deal with how it may be shown that the beneficial interests do differ from the legal interests, commencing with resulting trusts.
[1] [2007] UKHL 17 , at paragraph 56.
[2] At paragraphs 69 & 70.
[3] At paragraph 69.
Resulting Trusts
The two circumstances in which a resulting trust may arise were set out by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington LBC [1]:
1. Where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions; and
2. Where A transfers property to B on express trusts, but the trusts declared do not exhaust the whole beneficial interest.
Obviously, the first circumstance could arise quite frequently in relation to cohabitees. However, it appears that the presumption of resulting trust is no longer considered to be appropriate in the context of disputes relating to the family home - this was the conclusion of a majority of the House of Lords in Stack v Dowden [2], where Baroness Hale stated [3]:
The presumption of resulting trust is not a rule of law. According to Lord Diplock in Pettitt v Pettitt [1970] AC 777 , at 823H, the equitable presumptions of intention are "no more than a consensus of judicial opinion disclosed by reported cases as to the most likely inference of fact to be drawn in the absence of any evidence to the contrary". Equity, being concerned with commercial realities, presumed against gifts and other windfalls (such as survivorship). But even equity was prepared to presume a gift where the recipient was the provider's wife or child. These days, the importance to be attached to who paid for what in a domestic context may be very different from its importance in other contexts or long ago. As K Gray and S F Gray, in Elements of Land Law , 4th edition 2005, point out at p 864, para 10.21:
"In recent decades a new pragmatism has become apparent in the law of trusts. English courts have eventually conceded that the classical theory of resulting trusts, with its fixation on intentions presumed to have been formulated contemporaneously with the acquisition of title, has substantially broken down. . . . Simultaneously the balance of emphasis in the law of trusts has transferred from crude factors of money contribution (which are pre-eminent in the resulting trust) towards more subtle factors of intentional bargain (which are the foundational premise of the constructive trust). . . . But the undoubted consequence is that the doctrine of resulting trust has conceded much of its field of application to the constructive trust, which is nowadays fast becoming the primary phenomenon in the area of implied trusts."
So, we must turn to the constructive trust.
[1] [1996] UKHL 12 .
[2] [2007] UKHL 17 .
[3] At paragraph 60.
Constructive Trusts
There are two elements to establishing an interest under a constructive trust: (1) Showing that it was the common intention of the parties to share the beneficial interest in the property; and (2) Showing that the party asserting a claim to a beneficial interest has acted to his or her detriment in reliance on that common intention.[1] These elements will be dealt with in turn:
Common Intention
The common intention to share the beneficial interest can be established either by evidence of express discussions between the parties to that effect, or by evidence of conduct from which the common intention may be inferred.
Express Discussions - The question was explained by Lord Bridge in Lloyds Bank Plc v Rosset [1] thus: "...whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been."
A classic case of express discussions was Grant v Edwards [2], in which the judge in the High Court had found that the man told the woman that her name was not going onto the title because it would cause some prejudice in the matrimonial proceedings between the woman and her husband which were then pending or expected. Lord Justice Nourse in the Court of Appeal held that: "these facts appear to me to raise a clear inference that there was an understanding between the plaintiff and the defendant, or a common intention, that the plaintiff was to have some sort of proprietary interest in the house; otherwise no excuse for not putting her name onto the title would have been needed."
Inferred Intention - It is clear that a common intention to share the beneficial interest may be inferred from a direct contribution towards the acquisition costs [1], from an assumption of liability under a mortgage [3] and from regular and substantial contributions towards the mortgage [4]. Indirect financial contributions such as payment for domestic expenditure may also suffice [5], as should the making of improvements which add significantly to the purchase price [6]. However, in Burns v Burns [7] it was held that a woman was not entitled to any share in the beneficial interest in the home "even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union".
Detrimental Reliance
Where the parties' common intention has been inferred from their conduct, that conduct will, of course, show that the party asserting a claim to a beneficial interest has acted to his or her detriment in reliance on that common intention [1]. In the 'express discussions' cases, detrimental reliance must be shown separately. In Grant v Edwards [2] it was stated that the conduct amounting to detrimental reliance of the party asserting a claim need not be referable to the acquisition of the property, but that that party must have acted to their detriment on the faith of the common intention between them and the other party that they were to have some sort of proprietary interest in the property. Accordingly, the detriment must be substantial. Thus, for example, decorating the property will not suffice, but carrying out refurbishing work that the other party would otherwise have had to pay a professional to do would [8].
Quantifying the Interests
Having established that there is a constructive trust, the final matter to be determined is the quantification of each party's interest in the property. Here, the court should take a 'holistic' approach, explained by Baroness Hale in Stack v Dowden [6]: "The search is 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." Obviously, this will be easy where the intentions were actually expressed, but inferred or imputed intentions will be more difficult to ascertain, and in cases of sole ownership there is no starting-point assuming that the party asserting a claim has a 50% interest. Financial contributions will be important (and will be conclusive in the absence of other evidence, as in a resulting trust), but other evidence of intention will also be taken into account, including those set out by Baroness Hale in Stack v Dowden.
[1] Lloyds Bank Plc v Rosset [1990] UKHL 14 , [1990] 2 WLR 867, [1990] 1 All ER 1111, [1991] 1 AC 107.
[2] [1986] Ch 638 , [1986] Fam Law 300, [1987] 1 FLR 87, [1986] 3 WLR 114, [1986] 2 All ER 426.
[3] Mortgage Corporation v Shaire & Ors [2000] EWHC Ch 452 , [2001] 4 All ER 364, [2000] Fam Law 402, [2000] 3 EGLR 131, (2000) 80 P & CR 280, [2000] WTLR 357, [2001] 3 WLR 639, [2000] 2 FCR 222, [2000] BPIR 483, [2000] 1 FLR 973, [2001] Ch 743.
[4] Gissing v Gissing [1970] UKHL 3 , [1971] 1 AC 886, [1970] 3 WLR 255.
[5] Le Foe v Le Foe [2001] 2 FLR 97.
[6] Stack v Dowden [2007] UKHL 17 .
[7] [1983] EWCA Civ 4 , [1984] 1 All ER 244, [1984] Ch 317, [1984] 2 WLR 582.
[8]
Cox v Jones [2004] EWHC 1486 (Ch).
Proprietary Estoppel
Proprietary estoppel was defined in Taylor Fashions Ltd v Liverpool Victoria Friendly Society [1] as follows:
"If A, under an expectation created or encouraged by B that A shall have a certain interest in land, thereafter on the faith of such expectation and with the knowledge of B and without objection by him, acts to his detriment in connection with such land, a court of equity will compel B to give effect to such expectation."
There are therefore essentially two elements to proprietary estoppel: encouragement by one party that the other has an interest and detrimental reliance upon the expectation created by that encouragement, by the other party. These elements will be dealt with in turn:
Encouragement - The encouragement must relate to property. Accordingly, in Lissimore v Downing [2] it was conceded that general assurances by Mr Downing to Miss Lissimore that "she would never want for anything", or that "he would take care of her", or that "she did not need to worry her pretty little head about money", or that "his other girlfriends had never wanted for anything", or that "he had looked after his other girlfriends and she would not be different" did not found a proprietary estoppel.
Detrimental Reliance - The detrimental reliance must be induced by the encouragement, and need not consist of the expenditure of money (or any other quantifiable financial detriment), so long as it is something substantial [3], going beyond what might normally be expected of the relationship. In Lissimore v Downing [2] Miss Lissimore had given up her job and had turned down the offer of a better job, and had become dependent on Mr Downing; she had not invested the modest sum that she received from her own divorce settlement (either in purchasing a property or otherwise investing it) but had spent it, and she had, for the time that she lived with Mr Downing, devoted herself to the maintenance, improvement and smooth running of the Mr Downing's estate in Shropshire. None of this was considered to amount to substantial detriment.
If the two elements are proved, the court will determine "the extent of the equity and the relief needed to satisfy it", which will be "the minimum equity to do justice" [4] between the parties. In other words, the relief granted to the claimant will be proportionate to their expectation and detriment. Thus, in Jennings v Rice & Ors [5] it was considered to be disproportionate for the claimant, who had spent a considerable amount of time over many years caring for the deceased, to receive her entire estate of £1.285 million, and instead he was awarded £200,000, a sum estimated to be the cost of full-time nursing care for the relevant period.
[1] [1982] QB 133 , [1981] 2 WLR 576, [1981] 1 All ER 897, [1979] EWHC Ch 1.
[2] [2003] Fam Law 566 , [2003] 2 FLR 308, [2003] EWHC B1 (Ch).
[3] Gillett v Holt & Anor [2000] EWCA Civ 66 , [2000] Fam Law 714, [2000] WTLR 195, [2000] 3 WLR 815, [2000] 1 FCR 705, [2000] 2 FLR 266, [2000] 2 All ER 289, [2001] Ch 210.
[4] Crabb v Arun District Council [1975] EWCA Civ 7 , [1976] Ch 179, [1975] 3 All ER 865.
[5]
[2002] EWCA Civ 159 , [2002] WTLR 367, [2003] 1 P & CR 100, [2003] 1 P & CR 8, [2003] 1 FCR 501, [2003] 1 P&CR 8.
Resolving Disputes - s.14 Trusts of Land and Appointment of Trustees Act 1996
A party seeking to establish an interest in land, whether by way of constructive trust or proprietary estoppel, may apply for an order under s.14 Trusts of Land and Appointment of Trustees Act 1996 . Upon the making of the application the court may make any order "relating to the exercise by the trustees of any of their functions" (such as an order for sale) or "declaring the nature or extent of a person's interest" in the property as it thinks fit. The matters to which the court is to have regard in determining an application for an order under section 14 include:
(a) the intentions of the person or persons (if any) who created the trust,
(b) the purposes for which the property subject to the trust is held,
(c) the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and
(d) the interests of any secured creditor of any beneficiary.[1]
In the context of cohabitees the usual purpose for which the property is held is, of course, to provide a home for the parties, and that purpose will normally come to an end when the relationship breaks down, in which case the court will usually order a sale. Where, however, the property is still required as a home for any children, the court will not normally order a sale.
Before moving on to the procedure on a s.14 application, it should be mentioned that if the property is in the sole name of the other party then the claimant should protect their interest in the property by registering a restriction against the title to the property at the Land Registry.[2]
Procedure
Applications under s.14 are civil proceedings and therefore the Civil Procedure Rules 1998 ('CPR') apply. The application may be made to the High Court or to the county court for the district in which the defendant lives or the property is situated. The application is usually commenced by issuing a claim under Part 8, CPR , using a Part 8 claim form N208 , supported by a witness statement. The claim form should contain brief particulars of the claim, including the declaration of beneficial interest that the claimant is seeking. The witness statement should set out a detailed history of the matter, including evidence of common intention/proprietary estoppel encouragement and detrimental reliance, as appropriate. The claim form and witness statement are filed with the court, together with the court fee.
The court will then issue the claim and fix a date for directions. The claimant must then serve the claim form, witness statement and notice of the directions hearing upon the defendant, who must then file an acknowledgement and his own witness statement, within 14 days.
At the directions hearing the court will allocate the claim to the multi-track, and give whatever other directions are appropriate, including fixing a timetable for the final hearing.
[1] Trusts of Land and Appointment of Trustees Act 1996, s.15(1) .
[2] For further information, see
Land Registry Practice Guide 24 , Private Trusts of Land.
Transfer of Tenancies
The power to order the transfer of a tenancy is contained in Part II of Schedule 7 of the Family Law Act 1996 .The court may make a Part II order where one cohabitant is entitled, either in his own right or jointly with the other cohabitant, to occupy a dwelling-house (in which they lived together as husband and wife) by virtue of a relevant tenancy and the cohabitants cease to live together as husband and wife [1]. Relevant tenancies are set out in Part II and include protected or statutory tenancies within the meaning of the Rent Act 1977, secure tenancies within the meaning of the Housing Act 1985, statutory tenancies within the meaning of the Rent (Agriculture) Act 1976 and assured tenancies or assured agricultural occupancies within the meaning of Part I of the Housing Act 1988.
In determining whether to make a Part II order and, if so, in what manner, the court shall have regard to all the circumstances of the case including:
(a) the circumstances in which the tenancy was granted to either or both of the cohabitants or, as the case requires, the circumstances in which either or both of them became tenant under the tenancy;
(b) the matters mentioned in section 33(6)(a), (b) and (c) and, where only one of them is entitled to occupy the dwelling-house by virtue of the relevant tenancy, the further matters mentioned in section 36(6)(e), (f), (g) and (h); and
(c) the suitability of the parties as tenants.[2]
If the court makes a Part II order, it may direct the payment of compensation by the cohabitant to whom the tenancy is transferred (“the transferee”) to the other cohabitant (“the transferor”). In deciding whether to make such a direction and, if so, in what manner, the court shall have regard to all the circumstances including:
(a) the financial loss that would otherwise be suffered by the transferor as a result of the order;
(b) the financial needs and financial resources of the parties; and
(c) the financial obligations which the parties have, or are likely to have in the foreseeable future, including financial obligations to each other and to any relevant child.[3]
[1] Family Law Act 1996, Schedule 7 Part I, paragraphs 3 and 4 .
[2] Family Law Act 1996, Schedule 7 Part I, paragraph 5 .
[3]
Family Law Act 1996, Schedule 7 Part III, paragraph 10 .
Occupation of Property
A cohabitant with no beneficial interest in a property has no right to occupy the property save with the permission of the owner, which may be revoked at any time. Unless they can establish a contractual licence to occupy or are granted the right to occupy as a remedy to a successful proprietary estoppel claim [1] then they may seek to remain in occupation by the following means:
1. Obtaining an occupation order under Family Law Act 1996 , s.36, as discussed in Chapter 6; or
2. If there are children, seeking an order for the transfer of the property to themselves under Children Act 1989, Schedule 1, which is discussed above.
[1]
Greasley v Cooke [1980] 1 WLR 1036.
Engaged Couples
As mentioned in Chapter 1, where the cohabitants were engaged, there are two further possibilities for resolving property disputes between them:
1. S.17, Married Women's Property Act 1882
As has been seen, s.17 provides that a person who was engaged to be married may, within three years of the termination of the engagement, apply for a declaration as to what are the parties' rights in particular property. "Property" includes personal property [1]. The applicant will have to establish a proprietary right in accordance with trust and common law principles, which have already been discussed above . The court has no power to adjust proprietary rights.
The procedure on a s.17 application is set out in Family Proceedings Rules 1991, rules 3.6 and 3.7 .
2. S.37, Matrimonial Proceedings and Property Act 1970
S.37 (as applied to engaged couples by the Law Reform (Miscellaneous Provisions Act 1970, s.2(1) ) provides that where a person who was engaged to be married contributes in money or money's worth to the improvement of real or personal property in which or in the proceeds of sale of which either or both of them has or have a beneficial interest, the person so contributing shall, if the contribution is of a substantial nature and subject to any agreement between them to the contrary express or implied, be treated as having then acquired by virtue of his or her contribution a share or an enlarged share, as the case may be, in that beneficial interest of such an extent as may have been then agreed or, in default of such agreement, as may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of the parties arises (whether in proceedings between them or in any other proceedings).
[1] Married Women's Property Act 1882, s.24 .
