The courts in England and Wales have always treated the division of assets upon the breakdown of relationships involving married and non-married couples very differently. When dealing with married couples the court has huge discretion in achieving fairness; however unmarried couples have been subject to a very complex process which can depend upon strict legal entitlements with little regard for fairness in each case.
If a property is held in joint names there is usually a strong inference that the couple’s entitlement is equal ownership unless there is clear evidence to the contrary. If a property is held in one parties name only then that party is assumed to hold the entire interest and there must be the clearest evidence of a contrary agreement or understanding between the parties to overcome that assumption. This can be very difficult to prove.
Last month saw The Supreme Court’s decision in Gow v Grant continue the trend for awarding unmarried cohabitees a greater share of property on a discretionary basis. Under Scottish law, as was applied in this case, compensation was awarded to Mrs Gow for the “economic disadvantage” she had suffered as a result of selling her property to move in and live with Mr Grant.
England and Wales do not yet have such legislation despite Family Law practitioners calling for the Government to grant greater rights for unmarried couples. However, Lady Hale, one of the most outspoken of the Supreme Court Justices agreed with the decision in Gow v Grant, commenting that “there are lessons to be learned from this case in England and Wales,” calling also for law reform and cohabitation legislation which would be “likely to produce a fairer, quicker and cheaper access to the law.”
The concepts of “fairness” and “what is reasonable” are increasingly featuring in cohabitation disputes in England and Wales. Whilst this may provide some element of comfort to non-owning partners, it may mean greater uncertainty about the share of property that each party may receive in the event the relationship breaks down.
Cohabitees’ agreements help to protect against this sort of uncertainty and the prospect of risky and expensive litigation, particularly in respect of joint property purchases, investments and future contributions or payments. Such agreements, which can be prepared quickly and inexpensively, clearly set out what the cohabitees agree with regard to property and contributions so there is far less scope for argument later.
It is also recommended that legal advice be taken again where an unmarried couple subsequently changes their intentions.
31ST AUGUST 2012