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Published online by Cambridge University Press:  02 July 2013

Simon Gardner*
Lincoln College and Faculty of Law, University of Oxford.
Address for correspondence: Professor Simon Gardner, Lincoln College, Turl Street, Oxford OX1 3DR. Email:
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This article addresses and challenges recent comments to the effect that the common law rules about unmarried couples' property rights are uncertain, and (or but) that these rules yield an unfair result in a common scenario. It goes on to consider the Law Commission's proposed scheme aimed at reform of this area, raising the concern that this would violate Article 1 of the First Protocol to the European Convention on Human Rights.

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1 “Cohabitation: Lessons for the South from North of the Border?” [2012] C.L.J. 492.

2 [2012] UKSC 29; 2012 S.L.T. 829; [2012] 3 F.C.R. 73.

3 Cohabitation: The Financial Consequences of Relationship Breakdown, Law Com. 307 (2007).

4 [2007] UKHL 17; [2007] 2 A.C. 432.

5 [2011] UKSC 53; [2012] 1 A.C. 776.

6 The two dominant authorities themselves concern the “joint names scenario”, i.e. that where you and I are joint registered proprietors, and so have prima facie 50:50 beneficial shares in the house – the common intention in this case allowing me to claim a greater share. Their applicability also to the “single name scenario”, i.e. that sketched in the text, was indicated by Jones v Kernott (note 5 above) at [52], and has been accepted in the subsequent decisions Crown Prosecution Service v Piper [2011] EWHC 3570 (Admin) at [7], Geary v Rankine [2012] EWCA Civ 555; [2012] 2 F.L.R. 1409 at [19], and Thompson v Hurst [2012] EWCA Civ 1752 at [22] and [27], and also sub silentio in Gallarotti v Sebastianelli [2012] EWCA Civ 865; [2012] 2 F.L.R. 1231 and Aspden v Elvy [2012] EWHC 1387 (Ch); [2012] 2 F.L.R. 807.

7 Jones v Kernott (note 5 above) at [51]–[52], [64], [66].

8 Stack v Dowden (note 4 above) at [60]; Jones v Kernott (note 5 above) at [13], [51]–[52], [60].

9 Jones v Kernott (note 5 above) at [47], [51]–[52], [64], [72], [84], [89].

10 Possibly Ms Miles may contemplate a third, in the shape of difficulty in confidently stating the rules at all. This would be unjustified, however. Certainly, the law as it emerged from Stack v Dowden (note 4 above) was hard to describe. Hence the Law Commission's perception of problematic uncertainty in this area, formed at this time (op. cit. note 3 above, paras. 2.4–2.11, A.30–A.41). But the rules have since been progressively clarified by the decision of the Privy Council in Abbott v Abbott [2007] UKPC 53; [2008] 1 F.L.R. 1451, and especially by Jones v Kernott (note 5 above) and subsequent authorities (including those listed in note 6 above), to the point where it really is reasonably straightforward to state them, on the lines in the text above.

11 Stack v Dowden (note 4 above) at [69]–[70].

12 Stack v Dowden (note 4 above) at [69]–[70]; Jones v Kernott (note 5 above) at [51].

13 Note 5 above.

14 Abbott v Abbott (note 10 above); also Jones v Kernott (note 5 above) at [19]–[22], pointing to material communality as a reason for the presumption of 50:50 shares in a joint names case and why this presumption is hard to displace. In this vein, see too Fowler v Barron [2008] EWCA Civ 377; [2008] 2 F.L.R. 831.

15 Jones v Kernott (note 5 above).

16 The word is not used in the legislation, but the gist of the latter was authoritatively described in these terms in White v White [2001] 1 A.C. 596 at 599–600.

17 Stack v Dowden (note 4 above); Gallarotti v Sebastianelli (note 6 above); Thompson v Hurst (ibid.); Aspden v Elvy (ibid.).

18 See generally S. Gardner and K. Davidson, “The Supreme Court on Family Homes” (2012) 128 Law Quarterly Review 178Google Scholar; Gardner, S. with MacKenzie, E., An Introduction to Land Law, 3rd ed. (Oxford 2012), 166–73Google Scholar.

19 [1984] Ch. 317.

20 Ibid. at 328–9, 331, 345.

21 Note 19 above.

22 [1991] 1 A.C. 107 at 133.

23 Note 19 above at 329, 330, 331.

24 Note 4 above at [5]–[6], [19].

25 Notably Stack v Dowden (note 4 above); Gallarotti v Sebastianelli (note 6 above); Thompson v Hurst (ibid.); Aspden v Elvy (ibid.).

26 Note 19 above.

27 Though equally, it might not. After all, attention to the parties' genuine intentions is demanded by mainstream (libertarian) liberalism; and while attention to the lack thereof is not so straightforward, it could be similarly supported. For reference to libertarian liberalism in this general area, see e.g. Radmacher v Granatino [2010] UKSC 42; [2011] 1 A.C. 534, and Law Commission, op. cit. note 3 above, Part 5. For challenge to such reference, however, see e.g. Radmacher v Granatino at [78], [135]–[137], [187]–[193], highlighting the different message(s) of neo-republican liberalism and communitarianism – these being supportive of the argument as it continues in the text.

28 See e.g. Eves v Eves [1975] 1 W.L.R. 1338; Grant v Edwards [1986] Ch. 638; Hammond v Mitchell [1991] 1 W.L.R. 1127; Stokes v Anderson [1991] 1 F.L.R. 391. Moreover, in Le Foe v Le Foe [2001] F.L.R. 970 at 982 and Oxley v Hiscock [2005] Fam. 211 at [40], [68] the rule was itself misrepresented to less restrictive effect.

29 Note 5 above.

30 [2010] EWCA Civ 578, [2010] 1 W.L.R. 2401 at [81]–[83].

31 Note 5 above at [48]–[49], commenting that the trial judge “could and should” have made such a finding on the basis of the parties' behaviour.

32 Ibid. at [76]–[77].

33 Ibid. at [34]–[36], [65]–[66]; following Piška, N., “Intention, Fairness and the Presumption of Resulting Trust after Stack v Dowden” (2008) 71 M.L.R. 120, 127–8CrossRefGoogle Scholar.

34 Ibid. at [67], [70]–[76], [89].

35 Explicit adoption of this position was actually raised as a possibility in Jones v Kernott (note 5 above) at [84].

36 By way of caution, however, note Geary v Rankine (note 6 above) at [21]–[24], where the requirement of a genuine common intention is taken literally and seriously. But perhaps that was because, to the extent of the particular relevant facts, the parties' relationship was of a materially non-communal, even semi-commercial, character: the arguments for the approach proposed in the text are strongest in a materially communal context. Burns v Burns (note 19 above), the decision under discussion, exhibits (as explained earlier) the latter.

37 Op. cit. note 3 above.

38 More precisely, a relationship between persons who are not married or civil partners, but before the breakdown had lived together as a couple in a joint household either for a certain qualifying period, or as the parents of children.

39 Op. cit. note 3 above, paras. 4.41, 4.132–4.146.

40 So, for example, if the man mortgages the house without the woman's consent, her interest is likely to bind the mortgagee, as in Williams & Glyn's Bank Ltd. v Boland [1981] A.C. 487.

41 (1983) 5 E.H.R.R. 249 at 256. Examples give are “the division of property upon succession particularly in the case of agricultural property, the winding-up of certain matrimonial settlements and above all seizure and sale of goods in the course of execution proceedings.” The subject matter of the case itself forms another example: a rule “which, in certain circumstances, requires minority shareholders to sell their shares [to majority shareholders] at a price to be fixed by arbitration, while recognising their right to have them purchased on the same conditions if they so wish.”

42 It is tempting to see this effect in terms not of the material being excepted from Article 1, as the decision has it, but of its engaging the Article but being obviously justified. (All the more so given the point raised in note 46 below.) But this argument of principle is not pursued here.

43 The Law Commission does not use any of these words, nor a synonym for them. The relevant passages are in fact rather opaque (op. cit. note 3 above, paras. 4.42, 4.143–4.145), but may envisage less a substantive suppression or cancellation or removal of the claimant's trust rights than some kind of procedural impediment to their enforcement. This, however, would still represent an interference with property; see Sporrong and Lönnroth v Sweden (1983) E.H.R.R. 35 at [60], [63] for the concept's width. (It would also engage Article 6 (Right to a Fair Trial).) One could debate whether this interference takes the form of a “deprivation” or a “control” under the Article; cf. Pye v United Kingdom (2006) 43 E.H.R.R. 3; (2008) 46 E.H.R.R. 45; see S. Gardner with E. MacKenzie, op. cit. note 18 above, 34–7. However, the importance of this distinction is that reasonable compensation is needed to justify a “deprivation”, but not a “control” (James v United Kingdom (1986) 8 E.H.R.R. 123 at [54]). For present purposes, this does not signify: either way, the interference under discussion is unjustified (also or otherwise) for the distinct reason given in the text.

44 Op. cit. note 3 above, paras. 4.136–4.146.

45 Para. 4.42 of the Law Commission's account (op. cit. note 3 above) seems to suggest that the suppression rule would be aimed at prevention of double recovery: “Procedural and costs rules … must prevent parties who are eligible cohabitants from bringing claims under the [constructive trust doctrine] on the basis of facts which constitute qualifying contributions under the scheme.” But paras. 4.136–4.146 are less clear.

46 Imagine it were argued otherwise; that ground-clearing is warranted even where there is no question of double recovery. It would have to be noted that the doctrine in Bramelid and Malström v Sweden, note 41 above, contains a limitation. It does not apply (so there would be an interference, engaging Article 1, after all) where the impugned rule “create[s] an imbalance between them which would result in one person arbitrarily and unjustly being deprived of his goods for the benefit of another”: ibid. at 256. It seems to me that such undiscriminating ground-clearing would fall foul of this limitation. Unlike the deprivations involved in Bramelid and Malström v Sweden and the examples given there, and in a double recovery case in the area under discussion, it would not simply vindicate or help to vindicate the authentic implications of private law relations with respect to property. With its lack of discrimination, it would on the contrary be arbitrary and unjust.

47 White v White [2001] 1 A.C. 596; Miller v Miller, McFarlane v McFarlane [2006] UKHL 24; [2006] 2 A.C. 618.

48 See text at notes 14 and 15 above.

49 Note 4 above.

50 Note 19 above.

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