1. Property Rights of Engaged Couples

Engaged Couples can apply under s.37 of the Matrimonial Proceedings and Property Act 1970 and s.17 of the Married Women's Property Act 1882 for a property dispute to be settled. A s.17 application must be brought, however, within three years of the termination of the engagement (s.2(2)).

2. Property Rights of Married Couples

There is no concept of a pre­sumption of joint ownership of property in English law. However, it is possible to acquire a right of ownership by claiming an inter­est under a trust.

Reading:

For example, a person who makes a payment of money into a bank account held in the sole name of another party can argue that he or she has an interest in equity under a resulting trust proportionate to that payment. It is also possible to argue that there is an express trust of property. In Paul v. Constance [1977] 1 WLR 527, for example, the female cohabitant was held to have an interest under an express trust in the bank account held in her cohabitant's sole name, as she had been authorised to draw on the account and he had told her on sev­eral occasions that the money in the account was as much hers as his. Similarly, in Rowe v. Prance [1999] 2 FLR 787 the applicant was held to be entitled to a half share in a valuable yacht owned by her married lover even though she had made no financial contribution to its purchase. The court accepted that the evidence was sufficient to constitute a trust in her favour. Her lover had spoken about 'our boat,' 'a share of the boat together' and had said 'your security is your interest in it.' They had had a close relationship for 14 years and she had given up her rented house and put furniture in storage in order to move into the boat which they intended to sail round the world together. The court held that the man had constituted himself an express trustee of the boat, and that no writing was required because the property in dispute was 'personal' property (property other than land).

3. Property Rights of Cohabiting Couples

Many cohabiting couples believe that they have the same rights as married couples, but they are badly mistaken.

Reading:

Ghaidan v. Godin-Mendoza [2004] 2 AC 557 Concerning: definition of living 'together as husband and wife' Facts Mr Wallwyn-James was the tenant of a flat. For nearly 20 years he lived there with Mr Godin-Mendoza before he died. Mr Godin-Mendoza claimed that he was entitled to take over the tenancy under the terms of the Rent Act because he was living 'as husband and wife' with the tenant. Legal principle Relying on the Human Rights Act 1998, the House of Lords was willing to interpret the phrase 'living together as husband and wife' to include a same-sex couple. The interpretation was required to avoid discrimination against people on the basis of their sexual orientation. Further, the public policy behind allowing unmarried opposite-sex cohabitants to succeed tenancies applied equally to same-sex cohabitants.

Property of Cohabiting Couples. The case of Burns v. Burns provides a good illustration of the disadvantages of being a cohabitant compared with a spouse on relation­ship breakdown. In Burns, the female cohabitant (she had taken her partner's name) had cohabitated with her partner for nearly 20 years, during which time she had brought up the children and looked after the home. On the breakdown of their relationship, she claimed a beneficial interest in the home which was solely owned by her partner. However, the Court of Appeal dismissed her claim and, while expressing sympathy for her, held that it was the responsibil­ity of Parliament, not the judges, to change the law. In Hammond v. Mitchell, on the other hand, the female cohabitant was successful in obtain­ing a beneficial interest in the home under a constructive trust on facts which were similar to those in Burns, but with the exception that Miss Mitchell and her cohabitant partner had exchanged a few words about the house at an ear­lier stage of their relationship. These few words were held to be sufficient evidence from which it could be inferred that she was to have an interest in the home under a constructive trust. The arbitrary and unsatisfactory nature of the law has led to increasing dissatisfaction and calls for reform.

Compare Marriage and Cohabitation:

Marriage or civil partnership

To enter or end a marriage or CP formality requirements must be met

At the end of a marriage or CP the court has extensive powers to redistribute the couple's property and make maintenance orders

During marriage one spouse can seek financial support from the other (see e.g. Domestic Proceedings and Matrimonial Causes Act 1978)

A father who is married to the mother of his child will automatically obtain parental responsibility

When someone dies without a will, his/her spouse will automatically inherit all or most of the deceased's estate

There are tax benefits for spouses, particularly in relation to capital gains tax or inheritance tax

Cohabitants

There are no formal requirements to start or end cohabitation!

The court has no power to order maintenance to cohabitants nor redistribute property (although orders can be made in respect of children)

There is no obligation for a cohabitant to financially support another

A man who is not married to the mother of his child will not automatically gain parental responsibility, but may acquire it by other means

When someone dies without a will, his/her cohabitant will not inherit anything automatically

There are no tax advantages for unmarried couples

Cohabitation contracts

Reading:

Sutton v. Mischon de Reya [2004] 1 FLR 837 Concerning: enforceability of cohabitation contracts Facts Mr Sutton and Mr Stahl wished to sign a cohabitation contract. They approached the defendant firm of solicitors and asked them to draw up a contract which would acknowledge they were in a master-slave relationship. I hey wanted the contract to say, for example, that Stahl would obey all of Sutton's commands. The solicitors warned that the contract was probably unenforceable. When the couple separated this turned out to be true and Sutton sued the solicitors in negligence. Legal principle Normally cohabitation contracts were enforceable. However, contracts for sexual services were not. In this case the sexual side of the relationship was apparent throughout the contract. It would not have been possible, therefore, to produce an enforceable contract of the kind Sutton asked for.