Cohabitation

Question 1

Kimber v Kimber

Answer 1

factors to outline the difference between Marriage/CP and Cohabitation:

“(1) Living together in the same household

Generally this means that the parties live under the same roof, illness, holidays, work and other periodical absences apart. Where, as here, the wife [and her new partner] were doing so but are no longer spending every night together, the reasoning behind the change needs to be analysed: in other words, the ‘why’ posed by Woolf J (as he then was).

(2) A sharing of daily life

Living together seems to me to inevitably involve a mutuality in the daily round: a sharing of tasks and duties.

(3) Stability and a degree of permanence in the relationship; that it is not a temporary infatuation or passing relationship such as a holiday romance.

(4) Finances. Is the way in which financial matters are being handled an indication of the relationship?

(5) A sexual relationship

(6) Children

(7) Intention and motivation

(8) The ‘opinion of the reasonable person with normal perceptions’”

Question 2

Lloyds Bank v Rosset 1991

Answer 2

his case shows the narrow approach to deducing common intention that focuses solely on financial contributions prior to Stack v Dowden
Note that post Stack v Dowden non-financial contributions are relevant to inferring common intention

Common intention that a party is to have a share in a property registered in the sole name of another can be inferred where:

there is an agreement, arrangement or understanding prior to acquisition or exceptionally at some later date, that property is to be shared beneficially; or
there is no evidence to support finding an agreement and the court must rely entirely on the conduct of the parties
Agreement, arrangement or understanding

This has to be based on express discussions, no matter how imprecise the terms
In such a case only detrimental reliance on the agreement is needed to give rise to constructive trust or proprietary estoppel
Grant and Eves fit in here, conduct by the women would not have proven common intention had there not been a prior agreement

Question 3

Pettitt v Pettitt

Answer 3

• If there is an agreement in writing declaring each share of the property that each party has, it will conclusively determine the question between the parties:

Question 4

Curley v Parkes

Answer 4

• Must be direct financial contributions
• Contributions made to the property after the property is purchased will not count, unless they were agreed upon prior to the purchase: Curley v Parkes [2004] EWCA Civ 1515
• Loans or gifts do not create resulting trusts
• Considered a ‘measure of last resort’ due to rigidity and inappropriacy for family life

Question 5

Stack v Dowden

Answer 5

1. In joint name cases the presumption is that the property will be split equally;
2. The burden is on the party seeking to deviate from this presumption to show that the parties had a common intention to split the property in a different way
3. The courts will look at the whole course of dealing between the parties to determine what the common intention was.

Question 6

White v White [2001] AC

Answer 6

iii. There appears to be a gender-bias in the law. It devalues non-financial contributions to the household by treating them as insufficient to establish a constructive trust. This is different to the position between married couples or those in civil partnerships, where the Court has held that there should be no discrimination/differential treatment between the money-earner or homemaker/child-carer

Question 7

Radmacher v Grantino [2010]

Answer 7

• Cohabitation contracts ≠ pre-nuptial agreements . A court retains the right not to follow a pre-nuptial agreement if it would not be fair to do so