The Law Commission

PART 4

CRITICISMS OF THE CURRENT LAW ON SEPARATION OF COHABITANTS

INTRODUCTION

4.1      In this Part, we set out the key criticisms that have been made of the current law as it applies between cohabitants on separation where the parties have not regulated their affairs by way of express trust or contract. The law has been subjected to three principal accusations: that it is unfair, that it is uncertain, and that it is illogical. It has also been criticised as substantively and, in some cases, procedurally complex. Many of these criticisms equally affect cohabitants with children^[1] and those without. But there are inevitably some problems that are either uniquely or more acutely a feature of cases involving children. Our focus shall therefore be principally on those cases. We shall consider criticisms of the current law as it applies on the death of one cohabitant in Part 8.
4.2      At this stage, we simply set out the criticisms of the current law without seeking to draw any particular conclusions about whether the law is sufficiently problematic to warrant reform or, if it is, what form any new scheme should take and to whom it should apply. Whether or not the criticisms levied at the current law are strong enough to merit reform of the law in some, all or indeed any cases of cohabitation, is a complex issue. Evaluating these criticisms and the case for reform inevitably raises substantial questions of social policy, and we turn our attention to those difficult questions in the Part 5.
4.3      At the start of various sections in this Part, we refer consultees to Part 7, in which we have set out a number of hypothetical cases. The examples in Part 7 are used principally in order to demonstrate the effects that the scheme provisionally proposed in Part 6 would have, but the discussion that follows each example also outlines the outcomes produced by the current law.

UNFAIRNESS ON SEPARATION

4.4      As we saw in Part 3, in the absence of express trust or contract, the principal court-based remedies available to a cohabiting couple on the breakdown of their relationship are provided by the law of implied trusts and proprietary estoppel, and by Schedule 1 to the Children Act 1989. Child support will also be payable under the Child Support Act 1991.
4.5      The court-based remedies have been criticised for failing to provide fair outcomes in such circumstances, in particular by failing to recognise the value of certain types of contribution made by one party to the acquisition of assets owned by the other, and by failing to recognise the economic sacrifices made by those who give up paid employment, for example, in order to care for the couple's children.
4.6      The claimed unfairness of the current law is the result of:

(1) its dependence upon criteria and distinctions that appear arbitrary in the context of everyday domestic life, particularly in relation to domestic financial management;

(2) its failure to respond meaningfully or adequately to parties' interdependence, particularly the impact of their contributions to the relationship, and associated sacrifices, on each party's economic position at the point of separation; and

(3) its focus on the acquisition of individual assets, rather than a holistic review of the parties' economic positions; and its associated lack of remedial flexibility, which prevents it from responding constructively to cases involving modest assets.

We shall also see that cohabiting parents with dependent children face considerable procedural complexity when they invoke the law on separation.

Focus on intention to share ownership and direct financial contributions^[2]

4.7      Where the parties have not bought their home together (or where they jointly purchased their home without making a declaration of trust^[3]), the law of implied trusts and proprietary estoppel must be invoked in order to ascertain how the beneficial interest in the property is held. This law is concerned with establishing the ownership of individual assets.
4.8      As we have seen, establishing an interest in favour of a non-owner may depend either upon express evidence of a common intention to share ownership or, in the case of estoppel, some representation or assurance that the non-owner should have some proprietary interest. Many people do not articulate their intentions or assumptions regarding their home specifically in terms of ownership; they may be more likely to discuss their shared occupation of the home, particularly when the relationship is a happy one.^[4] Yet the law insists on discussion of or belief in ownership.^[5] In addition, as we have seen, the law does not attach significance to general promises of future financial support.
4.9      This puts the onus on the individual seeking to establish ownership of a beneficial share to persuade the judge that the right sort of conversation or understanding between the parties took place or existed, or that the right sort of belief was held by the non-owner and acquiesced in by the owner. Establishing whether the parties ever did turn their minds to the question of ownership may pose substantial evidential problems:

The primary emphasis accorded by the law in cases of this kind to express discussions between the parties ("however imperfectly remembered and however imprecise their terms") means that the tenderest exchanges of a common law courtship may assume an unforeseen significance many years later when they are brought under equity's microscope and subjected to an analysis under which many thousands of pounds of value may be liable to turn on fine questions as to whether the relevant words were spoken in earnest or in dalliance and with or without representational intent.^[6]

Success or failure in such cases may depend upon the judge's decision about the parties' credibility. Attempting to prove the existence of such intention in litigation may be costly.

4.10      In the absence of an express common intention to share ownership, the law of implied trusts will allow such intention to be inferred (if not imputed^[7]), and the trust to arise, by the making of certain financial contributions to the acquisition of the property in question. However, the continuing uncertainty about whether and when indirect financial contributions may suffice leaves the party who happened to pay household bills (rather than the mortgage) potentially without recognition for expenditure incurred for the parties' benefit, while the party who happened to pay the mortgage accrues a beneficial share.
4.11      The insistence that the parties turn their minds specifically to ownership or make particular contributions, and the continuing ambiguity about the relevance of financial contributions to general household running costs, could be said to leave cohabitants subject to a law ill-suited to the realities of family life.^[8] Whether an applicant succeeds in establishing an interest may be entirely fortuitous. In so far as the law requires that parties act specifically with a view to acquiring an interest, it could be said to favour calculating and self-interested individuals over the more altruistic (or less legally aware).^[9] Many people simply do not appreciate the significance that the law attaches to certain intentions and contributions, and the lack of significance it attaches to others. It has been said that the search for this particular intention "neglect[s] most of the ethical case to be made, in the family context, for having this jurisdiction at all".^[10]

Failure to recognise the value and impact of non-financial contributions and associated sacrifices^[11]

4.12      If the courts were to establish conclusively^[12] that indirect financial contributions should be capable of establishing an interest in property, it would benefit many cohabitants, at least to some extent.^[13] Evidence suggests that there are few families now in which both parties will not have made some financial contribution during the relationship.^[14] However, even with the benefit of that clarification, some individuals would remain without any share in the property. Whatever the position may be as regards financial contributions, the law is quite clear about non-financial activities. Non-financial contributions alone - running the home, raising the children, undertaking repairs and so on - and the potentially substantial economic sacrifices that they entail (for example by way of impairment to future earning capacity) will not give rise to any beneficial share. One commentator has recently observed that the courts' willingness to compensate individuals for foregoing specific investment opportunities is not matched by similar concern for the lost employment opportunities of many cohabitants who undertake home-making and child-rearing tasks.^[15]
4.13      The law's failure to recognise non-financial contributions for this purpose may be thought to give rise to potentially substantial unfairness. Such contributions have direct financial value - all such "services" can be bought on the market, so their provision by one party saves the couple money that they might otherwise have had to spend.^[16] Moreover, the performance of those activities may also have involved significant economic sacrifice by the party undertaking them. This is particularly true of child-care. Most primary carers are women,^[17] and much of the data on employment and parenting relate specifically to women. But the discussion which follows here would apply equally to fathers undertaking that role.

Evidence about the economic impact of parenting

4.14      Raising children can be one of the most rewarding and pleasurable experiences in life. However, parenthood does come at an economic cost. Having a family necessarily entails an increase in household expenditure, a cost that is usually felt by all members of the household.^[18] Although payment of the expenses associated with the children may not currently be recognised by the current law as a way of acquiring a beneficial share of the home in which the parties live,^[19] it does not impair that parent's future economic standing: that party's earning capacity remains intact.
4.15      However, parenthood also often involves substantial economic sacrifices in the form of suppressed earnings, earning capacity, pension savings and so on. In view of the tendency for most parents to specialise to some extent in their breadwinning and child-caring functions (for example, one parent gives up work or reduces his or her hours, at least while the children are pre-school, while the other continues to work full-time) one party will often make greater sacrifices of that sort than the other.^[20]
4.16      There is considerable evidence about the effect of child-care responsibilities on the income and earning capacity of mothers. A study carried out for the Cabinet Office in 2000^[21] demonstrates the impact that child-care and other caring responsibilities may have on many women's earnings and pension incomes in later life. Fewer years in employment, shorter hours through part-time rather than full-time work, lost experience (in the form of lost promotion opportunities and skills depletion) and the pay "penalty" independently associated with part-time employment combine to leave many mothers with substantially reduced income over the course of their lifetime than they might have received had they not had children.^[22]
4.17      The study shows that the level of mothers' educational attainment and their age at the birth of their first child has a considerable effect on the extent to which motherhood impacts negatively on their employment patterns. The lifetime incomes of low- and mid-skilled women may be substantially reduced by motherhood. Even though they are less likely to have been engaged in employment with a clear career path and future prospects prior to motherhood, they may lose a considerable proportion of what they would otherwise have earned over the course of their working lives and so have much lower pension income later in life.^[23] Conversely, in general, the income of many high-skilled women in professional occupations will not be substantially affected by motherhood, as they often have their children later in life and then return to the same job and career path following maternity leave. But even in these cases, parenthood brings a cost, as it will only be possible for both parents to stay in full-time work if money is spent on professional child-care.^[24] The higher earnings of these couples make child-care costs more affordable and economically realistic than they are for couples with lower incomes, for whom paid child-care (at least pre-school) may consume a considerable portion of what the party who would otherwise undertake the primary care is able to earn.^[25] However, clearly, if a high-skilled woman does give up or scale down her paid employment when the couple start a family, the extent of the economic sacrifice that she is making will be substantial.
4.18      Of course, times have changed since the leading authority on the law's refusal to base a beneficial share on non-financial contributions alone, Burns v Burns.^[26] Recent legislative measures seek to assist parents with the costs of child-care and to support "family-friendly" employment. Tax credits, flexible working, improved maternity, paternity and parental leave, and improved child-care provision all have important roles to play in helping parents sustain a good work-life balance and to pursue paid employment whilst also fulfilling their role as parents.^[27] The number of economically active women has increased by 4.3 million since 1971.^[28] And an increasing number of parents share child-care responsibilities - and the effect of those responsibilities on their employment - equally.^[29]
4.19      However, many couples do not evenly distribute the impact of child-care, either during their relationship or following separation. Some couples still choose complete role-specialisation (at least during the early years of the child's life^[30]) whereby one parent goes out to work, the other cares for the child at home, either as a result of economic constraints or simply preferring to raise their children in that way.
4.20      While the relationship is continuing, the party making the greater sacrifices in relation to employment may be protected from the effects of doing so by the support that the relationship provides.^[31] On separation, however, that support is lost, and the primary carer is exposed to the economic consequences of the role-specialisation which the parties adopted during their relationship. In particular, that individual may have an impaired earning capacity and reduced pension-savings. Moreover, if the children are still dependent on separation, whichever parent is primarily responsible for them thereafter may be unable to engage in full-time employment for a time, either at all or without engaging professional child-care.^[32] The resulting economic disadvantage experienced by that parent may in some cases continue long after the relationship ends and beyond the children reaching independence.
4.21      Although the non-resident parent will be required to pay child support, those payments only help to meet the immediate needs of the child, and do not, therefore, provide a remedy for the wider economic impact of parenthood on the primary carer. In the absence of any remedy providing financial relief to help the primary carer with that consequence of separation, the full economic impact of parenthood will be borne unequally between the parties. Some primary carers may be left at least partly reliant on the state, when that reliance would not have been necessary (at least in part) had the economic impact of child-caring responsibilities been shared equally between the parents, during the relationship or on separation.

The current law's lack of response to this problem

4.22      It is here that the current law may be said to fail the primary-carer cohabitant. Where the individual who has made these sorts of economic sacrifices happens to be able to point to other evidence from which a trust or estoppel interest might arise - such as an express common intention to share ownership or a relevant financial contribution, however small,^[33] from which the court was prepared to infer such an intention - then relief under the general law might be available.^[34] Certainly where the claimant has made a financial contribution, detrimental reliance will readily be found; whether non-financial contributions may constitute detrimental reliance is uncertain.^[35]
4.23      However, in the absence of such evidence, the non-financial contributions made by such individuals, and the associated economic sacrifices, will not, of themselves, generate a share in the value of any of the property or give rise to any other claim under the general law. Individuals in this position may therefore be left entirely without remedy on separation, despite those economic sacrifices and their potentially long-term consequences for earning capacity.
4.24      Although we have focused on the case of parenting, the law's failure to acknowledge the value of non-financial contributions to the parties' relationship and the economic sacrifices associated with them may also affect some cohabitants without children. For example, one party might give up work in order to care for the other party (in case of illness or old age), or for an elderly relative.^[36] Or a couple might relocate frequently over the course of a long relationship, possibly internationally, in order to pursue the career of one party at the expense of the other's. The economic disadvantage sustained in such cases may typically be less profound than that experienced by many cohabiting parents, but, in both cases, they are sacrifices which will not of themselves give rise too any share in property or other remedy under the general law.
4.25      From the perspective of the claimant unable to point to the sort of evidence described in paragraph 4.22, but for whom the impact of the relationship and the separation is as profound as those who can, the law's insistence on this particular evidence may seem arbitrary.
4.26      Moreover, some commentators have suggested that the current law is discriminatory on grounds of gender (in a way that prejudices both male and female claimants) in so far as certain types of contribution made by women may not be regarded as "detrimental" reliance, but would if made by a man, and vice versa.^[37]
4.27      For those claimants who do manage to leap the general law's initial hurdles (by proving common intention, relevant contributions, and so on, as described in paragraph 4.22), the court then comes to quantifying the interest or, in estoppel, to determining what remedy, if any, is required to satisfy the equity. Non-financial contributions are given their greatest weight by the current law at this stage. They can result in as much as a 50% share in the property being attributed to the contributing party.^[38]
4.28      Yet, as we have seen, perhaps particularly in cohabitants' cases, the courts seem to continue to attach substantial weight to the parties' respective financial contributions.^[39] Trust law's capacity to give non-financial contributions proper weight - taking full account both of the economic value of those activities and the economic sacrifice sustained as a result of their performance - is therefore doubtful. On the face of it, the remedial stage of a proprietary estoppel claim offers more hope, concerned as it may be with the claimant's reliance losses.^[40] However, unless the applicant can prove a relevant representation or assurance at the outset, no claim in estoppel will arise.
4.29      If what is wanted is a remedy responding to the economic disadvantage felt on separation and sustained disproportionately by those who have undertaken child-care and other domestic responsibilities in the home, then the general law of trusts and estoppel does not provide it. Since that law is not designed specifically to deal with that issue, whether it in fact happens to do so in any individual case is entirely fortuitous. The general law is directed at identifying the ownership of particular assets and responding to specific assurances made about the acquisition of rights in relation to property. This means that it erects preconditions for successful claims which appear arbitrary and irrelevant if what is desired is a remedy that will apportion the economic impact of the parties' relationship and its breakdown.

Lack of holistic view and flexible remedies^[41]

4.30      Even if the claimant is able to establish an interest in the parties' home, fair outcomes on separation may still not be guaranteed. The law of trusts and proprietary estoppel focus exclusively on the ownership of particular items of property and contributions towards their acquisition. They are neither designed nor able to provide a comprehensive review of the parties' economic positions at the end of a relationship. Trust law, in particular, suffers from its inflexibility in terms of the remedy it offers: a beneficial interest in the particular asset subject to dispute. Even proprietary estoppel, which is able to offer monetary remedies, does not provide the same sort of remedial flexibility that a statutory scheme of specialist family law orders can offer (in particular, periodical payments and, in appropriate cases, pension sharing).
4.31      The existing statutory remedies applicable to cohabitants on separation are also arguably deficient, both individually and in terms of the overall package that they produce. They do not go far enough to make up for the shortcomings of the general law, at least where the parties' home is owned by one or both of them rather than rented.^[42]
4.32      The occupation order scheme in the Family Law Act 1996 does not offer a satisfactory basis for the long-term resolution of separating cohabitants' problems and was not intended to do so.^[43]
4.33      Where the parties are co-owners of property, the Trusts of Land and Appointment of Trustees Act 1996 ("TOLATA") offers a mechanism whereby the property may be retained on separation for the occupation of one party with the children. However, the courts' ability to use that remedy may be hampered by some of the constraints which, we believe, may be impeding the use of Schedule 1 to the Children Act 1989. We discuss those constraints in the following paragraphs. It is also important to bear in mind that Schedule 1 will only offer any remedy were the children are still dependent. The party who cared for the children over the course of a long relationship but who can establish no interest in the family home will therefore be left without any substantial remedy.

The apparently limited use of Schedule 1 to the Children Act 1989

4.34      The most curious feature of the Children Act jurisdiction is its apparent under-use. 1024 applications were made under Schedule 1 in 2004, resulting in just 389 orders.^[44] The bare statistics do not indicate the nature of those applications, in particular, how many of them involved separating cohabitants seeking capital orders. Some will have been "big money" cases that exceeded the Child Support Agency jurisdiction for maintenance.^[45] Others may have been cases where one of the relevant parties was not habitually resident in the UK, in which case the Child Support Agency lacks jurisdiction and basic maintenance is therefore a matter for the courts. So only some of the orders will have related to "ordinary" cohabitants seeking capital orders, and the number of orders made (both in total and attributable to ordinary cases) is surprisingly small.^[46]
4.35      There are various possible reasons for this apparent under-use. It has been suggested that some advisers overlook, or may even be unaware of, Schedule 1 of the Children Act,^[47] and many cohabitants do not seek advice regarding the property aspects of their separation.^[48] More effective use of that legislation in appropriate cases may go some way to alleviate the financial hardship encountered by cohabitants and their children on separation. However, there appear to us to be some fundamental problems with Schedule 1 (to some extent shared with TOLATA), which may explain why many advisers for good reason discount it on the grounds that it is not a feasible or worthwhile remedy.

THE LIMITS ON THE COURT'S POWERS TO MAKE ACCOMMODATION AVAILABLE

4.36      When cohabiting parents separate, two homes must be sustained where there was once one shared household. Orders made under the Children Act 1989 (requiring the non-resident parent to make the home available for the child and primary carer during the child's minority only), and the TOLATA occupation order (only available where the parties are co-owners), both involve maintaining the existing family home and leaving the non-resident parent to find alternative accommodation. Certainly in the case of orders under Schedule 1, once the order expires on the child reaching independence, the property will revert to its owner(s) and the proceeds of any sale apportioned strictly in accordance with the parties' beneficial interests.^[49]
4.37      Since orders under either Act take effect behind a trust, it is necessary to appoint appropriate trustees to hold the property concerned. We understand that this can prove problematic in Schedule 1 cases, and solicitors are often unwilling to act as trustee.
4.38      Moreover, whether any order is at all feasible will depend both on the ability of the primary carer to maintain the family home, particularly if it is mortgaged, and on the ability of the other parent to rehouse without access to his or her share of the capital in the family home. If these cannot be done, then no order would in practice be made.
4.39      Even assuming that the non-resident parent is able to rehouse without access to the capital, it will not be realistic to make an order if the income (earnings, any benefits^[50] and tax credits, and child support) received by the primary carer are insufficient to service the outgoings relating to the property. Many primary carers will not have enough income at their disposal to do this. The court has no power to order the non-resident parent to pay the mortgage over the home.^[51] If the primary carer does not independently have the resources to pay the mortgage, it will only be possible to provide sufficient funds to enable him or her to do so in the following circumstances:

(1) in a "big money" case (which exceeds the jurisdictional limit of the Child Support Agency), the court has the power to order additional periodical payments in favour of the child which are large enough to cover the mortgage;

(2) where a consent order for such periodical payments is made which includes an amount to cover the mortgage payments. However, in so far as the value of such an order exceeded what was payable by the non-resident parent under the Child Support Act formula, that parent would have a clear incentive to apply to the Agency after one year for a maintenance calculation which would replace the consent order;^[52]

(3) where the Child Support Agency payments are in any case sufficiently large that, taken in combination with the parent with care's other income, there are enough funds to meet the child's basic needs and pay the mortgage; or

(4) where a lump sum order is made under Schedule 1 to the Children Act 1989 for the purpose of paying off part of the mortgage capital, thereby reducing the value of the monthly instalments and bringing them within reach of the parent with care.^[53]

4.40      But if the non-resident parent needs the capital tied up in the property to rehouse themselves, or otherwise cannot afford to support any of the strategies outlined above, then clearly the Schedule 1 order will be unrealistic. Nor, for the same reasons, would a TOLATA occupation order be possible.
4.41      In order to make the most of a limited asset pool in these circumstances, remedial flexibility is essential. In the case of divorcing spouses or civil partners dissolving their relationship, the courts can order sale of the family home and divide the proceeds for the purchase of two, smaller properties which the parties can between them afford to maintain. The courts exercising jurisdiction under Schedule 1 have no express power to order sale. Nor can they order the transfer of capital outright to the primary carer; any transfer of capital for the benefit of the child would be on the basis that, if not exhausted for the child's benefit during minority, it would revert to the non-resident parent when the child attained independence.
4.42      On the face of the Children Act 1989, children now have access to largely the same remedies for their benefit, regardless of the nature of the relationship between their parents. To that extent, English law no longer discriminates directly between children on the basis of their birth status.^[54] However, in practice, in cases where assets are modest, the powers available to the divorce courts to make orders for the benefit of the primary carer, and the availability under that legislation of a power to order sale, can be crucial in making the powers relating to children workable.^[55] The lack of equivalent flexibility in cases relating to cohabitants' children could be said to discriminate indirectly against those children.^[56] It might be argued therefore that some reform is necessary, not only for the benefit of the parent with care, but also in the interests of the children.

DELAYED POVERTY FOR THE PRIMARY CARER

4.43      Another serious disincentive for the parent with care to rely on the Children Act remedies is the delayed poverty trap that Schedule 1 orders can create. Like the general law, the Children Act does not provide financial relief for the economic disadvantage sustained by the primary carer as a result of the relationship and its breakdown. It only allows orders to be made for the benefit of the child and these are largely limited to capital orders.^[57] Although the parent with care may benefit indirectly from such orders, once the children reach majority, those orders expire, and so too will that indirect benefit. The Act therefore cannot be relied on to share fairly between the parents the full economic impact of parenthood beyond the children's independence. The current lack of statutory remedy for such former cohabitants, together with the restrictive nature of the law of trusts, means that the non-financial contributions made by that parent may receive no recognition on separation at the end of what may have been a very long relationship.
4.44      This also has particular implications for the potential of the Children Act 1989 to require the other parent to make a home available for the children and carer during the child's minority. Any order made providing a home for the children and their primary carer will expire once the children reach majority. The house will at that point revert to its owner(s) and may be sold. The parent with whom the children lived may then be in some difficulty, particularly if that parent does not have any beneficial interest in the property and so a share in the capital released on sale. At that point, the parent will be rendered homeless at a time when he or she is likely no longer to have a priority need for social housing.^[58] He or she may also find it difficult to afford private housing^[59] owing to long-term impairment to earning capacity arising from the child-care that he or she has undertaken. Parents who foresee that predicament may prefer from the outset to pursue alternative options, particularly in social housing, which will offer them long-term residential security, even though this means having to move the children from the family home.
4.45      Indeed, its focus on the child's welfare causes the Children Act to produce what might be considered a rather paradoxical result, viewed from the perspective of the adult parties. The parent with primary care of a child near independence, who may have been out of work for many years, may only "receive" a relatively small award for that child's benefit for the short time until majority is reached or education completed. A parent with a young child by contrast may "receive" a larger award for the benefit of the child to cover the longer period of the child's remaining dependence. That makes sense in terms of the child, but not for the parent. The parent of the older child will often have been cohabiting with the other parent for a considerably longer period than the parent with the young child. The longer-term cohabitant might be thought to deserve rather more recognition for the contributions made to the relationship, and the associated economic sacrifices they entailed, over that period. Both parents may sustain significant economic disadvantage in consequence of their status as primary carers.
4.46      However, this issue is not something that Schedule 1 of the Children Act 1989 itself could be expected to address. That legislation is concerned with remedies for the benefit of the child. If reform were considered necessary to deal with this problem, it ought therefore to take the form of a separate remedy for the primary carer.

Substantive and procedural complexity^[60]

4.47      The position of cohabitants is not assisted by the fact that, in the absence of any comprehensive, tailor-made family law remedy, they need to negotiate a wide range of general and statute law in order to find some sort of remedy on separation.
4.48      Carnwath LJ's recent critique conveys the nature of the problem posed by the general law of property and trusts as it applies to determine cohabitants' disputes on separation:

To the detached observer, [the law as it has developed over the years] may seem like a witch's brew, into which various esoteric ingredients have been stirred over the years, and in which different ideas bubble to the surface at different times. They include implied trust, constructive trust, resulting trust, … proprietary estoppel, unjust enrichment, and so on. These ideas are likely to mean nothing to laymen, and often little more to the lawyers who use them.^[61]

4.49      Many of the individual strands of law that must be relied on are therefore complex in their own right. The combination of those strands is not a happy one. The complexity and uncertainty of the law make it difficult for parties to settle their cases privately and for their legal advisers to give clear guidance about what the outcome of litigation might be. Some parties, at least, are consequently inclined to allow the court to decide the outcome rather than settle it themselves. Others might be inclined simply to give up.
4.50      Nor are cohabitants assisted by the procedural complexity entailed in the combination of invoking a mixture of general and statute law, in civil and family proceedings respectively. Cohabitants wishing to argue under the law of trusts must issue proceedings for a declaration under TOLATA. Although it is possible to issue in the Principal Registry of the Family Division, those trusts actions are adversarial civil proceedings, not subject to the Family Proceedings Rules and so not best suited to supporting individuals going through the emotionally difficult transition of separation. Lengthy pleadings are required to ensure that all conceivably relevant facts and remedies are covered, and large numbers of documents must be obtained and scrutinised, often at great expense. Each case will depend not just on who is telling the truth, but on whose recollection appears (rather than necessarily is) the more accurate. Considerable judicial time must be spent receiving oral evidence. This is expensive for the parties and for the court, and most parties will be in no position to afford such substantial legal costs.
4.51      The same parties, and the same property, may simultaneously be the subject of proceedings under Schedule 1 to the Children Act 1989 which has its own requirements.^[62] This inevitably gives rise to a degree of repetition and increased costs, without evident benefit to the parties. Schedule 1 cases are family proceedings, commenced by the completion of specific court forms.^[63] The particular procedure adopted will depend upon the individual judge.^[64] Such dual applications should ordinarily be heard at the same time as conjoined applications by the same judge in the county court, giving the Schedule 1 application lead status.^[65] However, although any judge can hear a Schedule 1 application, the awkward combination of family and civil proceedings, together with unnecessary duplication of paperwork, remain.

UNCERTAINTY ON SEPARATION

4.52      In addition to the problems unfairness and complexity, cohabitants face considerable uncertainty under the current law. Of course, for many applicants the outcome is perfectly clear: they have no remedy or property right. Others might have an arguable claim under the law of implied trusts and estoppel, but for many such applicants, there may remain considerable uncertainty as to whether the claim will succeed and if so, what their remedy or share will be.
4.53      The uncertainty surrounding equitable remedies derives from several factors: the law's theoretical complexity and persistent ambiguity on key points; the evidential difficulties involved in establishing the facts necessary to support a claim to an interest; and the consequent unpredictability about whether there is an interest at all, and, if so, its size.
4.54      The apparent relaxation of the quantification of constructive trusts recently effected by the Court of Appeal, particularly (in relation to cohabitants) in Oxley v Hiscock,^[66] has been subjected to widespread academic criticism for the uncertainty it has produced.^[67] It has been said that:

… there remains a real danger that the endorsement of a generalised culture of 'fair' adjudications of entitlement will not only spawn litigation, but will also introduce an excessive element of uncertainty or of arbitrary (and effectively unappealable^[68]) judgment into a field of law which is already unduly complex and unpredictable.^[69]

4.55      In the context of trust law, this broad quantification exercise poses a real problem for third parties who might find themselves bound by the resulting interest. Estoppel suffers from similar uncertainty as to the precise remedy, but at least in that context the court may select a monetary remedy that will have no implications for third parties. In both cases, however, the uncertainty for the parties remains.

REMEDIES ON DEATH, BUT NOT ON SEPARATION: ILLOGICAL AND UNFAIR?

4.56      In 1995, the then Government and Opposition supported the introduction of the special class of cohabitant claimant to the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act") as a "useful and uncontroversial measure of law reform".^[70] The result of this legislative change is that there is a statutory remedy for cohabitants whose relationships are terminated by death, but not for those who separate.
4.57      This state of affairs could be considered illogical. Whether the relationship is ended by death or separation, the practical problems which might be felt to justify a remedy are, to some extent, very similar. The current remedy on death presupposes and caters for need. Provision is based on the applicant's maintenance requirements, and the court is directed to have regard to the length of the relationship and the applicant's contributions to the parties' relationship.^[71] The sort of hardship to which remedies under the 1975 Act can respond may also be experienced when a relationship ends during the parties' joint lives, yet no remedy exists to deal with the financial hardship faced on separation. Moreover, the current law may appear to be relatively generous to some and ungenerous to others. Survivors of two-year, childless relationships are entitled to apply for a remedy on the death of their partner, designed to cater for their personal needs. But a cohabitant on separation of a thirty-year relationship during which he or she sacrificed a career in order to assume primary responsibility for the upbringing of four, now adult, children has no access to any remedy specifically designed to deal with the economic impact of the end of that relationship.
4.58      There is, of course, at least one key difference between separation and death cases. While the respondent on separation may be unwilling to grant any property to the applicant when their relationship breaks down, the deceased (if the death disrupted a thriving relationship) might often be expected to have wanted the survivor to have something.^[72] However, the law of succession has for some time been prepared to override wishes manifested in the deceased's will in favour of particular classes of applicant, including cohabitants. The law of family provision allows some of those deliberately left without inheritance by the deceased nevertheless to obtain something. Deference to the wishes of the party from whom the property would be transferred may therefore not be felt to provide a clear rationale for making remedies available on death but not on separation.

HUMAN RIGHTS LAW IMPLICATIONS?

4.59      We now consider the possible implications the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"): does it require us to reform English law, and does it impose any constraints on the shape of any reform undertaken? We shall first address arguments that might be made on behalf of a putative applicant. There are two basic issues to be addressed: direct infringement of any of the substantive rights and the question of possible discrimination in the exercise of those rights contrary to Article 14. We shall then consider the specific question of whether new remedies could violate respondents' property rights.
4.60      The ECHR prescribes a basic level of human rights protection below which states must not fall. So even if the Convention does not require that a particular course of action be taken, individual states remain free to provide additional legal protection, provided they do not thereby contravene any other rights.

Article 8 – the right to respect for family life and home

4.61      "Family life" can exist, for the purposes of Article 8, between a cohabiting couple, at least where they have children, including step-children, and possibly even where they do not.^[73] The court will consider for these purposes whether the couple live together, how long their relationship has lasted, whether they have children together, whether they are financially interdependent, and so on.^[74] The European Court of Human Rights, and English courts, have yet to determine conclusively that same-sex couples, in particular those without children, have "family life" for the purposes of Article 8.^[75]
4.62      However, even if the couple have a "family life" for these purposes, the state's failure to recognise such a family by, for example, conferring a legal duty on either cohabitant to maintain the other or a right for the surviving cohabitant to inherit on intestacy, has been held not to breach Article 8.^[76] Moreover, while the right to respect for the home under Article 8 does apply to those who have no legal right to occupy the property in question,^[77] there is no right to be provided with a home;^[78] nor does Article 1 to the First Protocol confer a right to acquire property.^[79] It seems therefore that the UK is under no positive obligation to provide private law remedies for financial relief at the end of any type of relationship.^[80]

Article 14 – the right to be free from discrimination in the exercise of Convention rights

Different treatment of cohabitants and spouses

4.63      Although the State is under no obligation to provide any class of person with remedies for financial relief at the end of a relationship, if it chooses to provide such relief for some categories of person (as the UK has in relation to spouses and civil partners), it must not do so in a discriminatory manner. Article 14 of the ECHR prohibits discrimination on grounds of marital status^[81] in the exercise of other Convention rights. In some contexts, such as eligibility for welfare benefits and, for the most part, in their relationships with their children,^[82] cohabitants are treated like spouses in English law. In relation to remedies on separation and death, they are not. However, for reasons that we explain below, it seems unlikely that this would currently be regarded by the European Court of Human Rights as a violation of Article 14. There is therefore no need, as a matter of European human rights law, for domestic reform to subject cohabitants to the same legal regime on separation and death as spouses. ^[83]
4.64      Since Article 14 operates only in relation to the enjoyment of other Convention rights, it is necessary first to identify whether the subject matter of the complaint falls within the ambit of some other right.^[84] The grant of private law financial remedies on separation and death falls within the ambit of Article 8's protection of family life.^[85]
4.65      However, mere difference of treatment within such a field does not necessarily amount to discrimination. Discrimination entails treating analogous situations differently on a prohibited ground (here, marital status) without an objective and reasonable justification. The key questions are whether spouses and cohabitants are in analogous situations for the purpose of access to financial relief on separation and death, and, if so, whether the difference of treatment can be justified as pursuing a legitimate aim and as proportionate to that aim.^[86]
4.66      The European Court and Commission has addressed different treatment of spouses and cohabitants in various contexts, including tax law,^[87] widow's benefits,^[88] and remedies on separation.^[89] It has consistently upheld states' different treatment of cohabitants in relation to remedies on the basis that it is legitimate to promote the traditional concept of the family based on marriage, a special status to which distinctive legal rights and obligations apply, at least where cohabitants are free to marry and so bring themselves within the more beneficial legal protection.^[90] However, it is worth noting that the most recent case concerning financial relief in private law was not strong on the merits: even if the applicant had had access to the same legal regime as spouses, little, if any, remedy would have been provided.^[91] How the European Court might react in future to a case with stronger merits remains to be seen. It is important to remember that the Convention is regarded by the Court as a "living instrument", which adapts to changing social conditions.^[92]
4.67      In the context of English law, the European Court's reasoning must now be adapted to accommodate the introduction of civil partnership, since marriage no longer uniquely enjoys remedies supplying financial relief on separation, inheritance under the intestacy rules and family provision on death. The UK may, therefore, no longer be able to justify different treatment of cohabitants and spouses on the basis of promoting marriage alone. However, given the legal similarities of civil partnership and marriage, it seems likely that a similar defence of the different treatment could be maintained, turning on the promotion of families founded on a formal legal commitment (whether by marriage or civil partnership). Opposite-sex and same-sex couples each have access to a legal institution to which the sought-after legal rights and remedies attach.^[93] Indeed, for reasons which we explain in Part 6, there are good reasons why any new scheme for financial relief introduced for cohabitants should base relief on principles different from those that apply under matrimonial and civil partnership law.

A right to different treatment in the exercise of Convention rights

4.68      Another important aspect of discrimination law is the right to be treated differently from others with whom one is not in an analogous situation.^[94] Some cohabitants might argue that they ought not to be subject to the same law as spouses and civil partners in this sphere, precisely because they have not made the same legal commitment.
4.69      The key issue then is the significance which should be attached, in the context of financial relief on separation and death, to the presence or absence of formal registration of the parties' relationship and the commitment that registration entails. While the absence of such formalisation may not be felt to justify a complete denial of remedies,^[95] it may mean that if any new scheme of remedies for cohabitants were introduced, it should differ in some respects from that applying to spouses and civil partners. In particular, the lack of legal commitment might be felt to affect the extent to which any remedies impinge on respondents' property rights.^[96] It might also have implications for the provision of a right to opt out of any new scheme.^[97]

Indirect discrimination against the children of cohabitants?

4.70      We have already referred to the possibility of an argument being made that the operation of the law currently discriminates against the children of cohabitants.^[98] Save in relation to the power to order sale,^[99] the courts' powers to provide financial relief for children are theoretically the same regardless of whether the child's parents were married. However, it appears that the absence of remedies between the parents in cohabitants' cases, with the flexibility that provides to the court, may undermine the courts' ability to provide equivalent financial relief for the children of cohabitants. The idea that the absence of a particular remedy or right for the parent could be regarded as constituting discrimination against the child is an argument to which the European Court has given only the briefest attention, and then in the context of welfare benefits rather than private law remedies.^[100] Nevertheless, it is a point that we consider may merit some attention, and it must be treated as being open to argument in a future case addressing private law remedies.
4.71      However, as is the case between the adult parties, the necessary and proper response to this difficulty faced by the children (and by the adults) may not be to subject cohabiting parents (or cohabitants generally) to the same law as married parents. The interests of children of cohabitants may be as well served by the introduction of some other scheme of remedies between the adult parties. The problems identified earlier in this Part cannot be solved only by extending matrimonial remedies to cohabiting parents on separation.

Article 1 to the First Protocol and Article 8 – respondents' property rights

4.72      Any reform must also consider the rights of potential respondents, in particular as regards the impact of relief on their property.^[101] It has been held that the regulation of rights between individuals under private law will not amount to a "deprivation" of property for the purposes of Article 1 of Protocol 1, unless the law permits the respondent's property to be taken for a purpose which serves the public interest (rather than the interests of the individual benefited).^[102]
4.73      An issue may arise regarding "peaceful enjoyment" of the respondent's property.^[103] But here too, the European Commission has recognised that the state will often require the owner of property to give up assets pursuant to some obligation under private law. Such rules are regarded as "indispensable for the functioning of society under a liberal regime" and cannot in principle be held to breach the Convention, provided that "when making rules as to the effects on property of legal relations between individuals, the legislature does not create an imbalance between them which would result in one person arbitrarily and unjustly being deprived of his goods for the benefit of another".^[104]
4.74      Provided that any new regime for financial relief were founded on clear principles which offered a sound justification for any order to be made, we consider that no violation of respondents' property rights would arise. Any argument relating to the respondent's property rights framed in terms of Article 8 could readily be justified under Article 8(2), as a proportionate interference designed to protect the rights and freedoms of the party benefiting from the relief ordered. Special care would, however, have to be taken in relation to any retrospective operation of a new scheme. We discuss this issue in Part 11.^[105]

CONCLUSION

4.75      We have outlined in this Part the chief criticisms that have been laid at the door of the current law - its unfairness, its uncertainty, its illogicality and, at least for cohabitants with children, its procedural complexity - and surveyed the possible implications of human rights law in this field.
4.76      It remains to be seen, however, whether the problems highlighted in this Part, together with the public's belief in the common law marriage myth and the increase in cohabitation described in Part 2, justify reform of any sort, and if so, in what form and in relation to which cohabitants in particular. We consider those questions in the next Part.

Note 1    In this Part, we use that expression “cohabitants with children” to describe a variety of families; in Parts 6 and 9, we shall consider separately the cases of cohabitants who become parents together, cohabiting step-families and other families with children who are not the children of both cohabitants.    [Back]

Note 2    See Part 7, Examples 1, 1A, and 8A.    [Back]

Note 3    See para 3.11 for a discussion of current land registration requirements.    [Back]

Note 4    As Lord Bridge acknowledged in Lloyds Bank Plc v Rosset [1991] 1 AC 107, 128.    [Back]

Note 5    Lloyds Bank Plc v Rosset [1991] 1 AC 107.    [Back]

Note 6    Hammond v Mitchell [1991] 1 WLR 1127, 1139, per Waite J.    [Back]

Note 7    See para 3.29 and following paragraphs.    [Back]

Note 8    See S Gardner, “Quantum in Gissing v Gissing constructive trusts” (2004) 120 Law Quarterly Review 541; K Gray & S F Gray, Elements of Land Law (4th ed 2005) para 10.128.    [Back]

Note 9    K Gray & S F Gray, Elements of Land Law (4th ed 2005) para 10.136.    [Back]

Note 10    S Gardner, “Quantum in Gissing v Gissing constructive trusts” (2004) 120 Law Quarterly Review 541, at 546.    [Back]

Note 11    See Part 7, Examples 1-1B, 3, 4, 6, 7, 7A and 10.    [Back]

Note 12    Ideally, in view of the conflict between various judicial comments in Gissing v Gissing [1971] AC 886 and Lord Bridge’s remarks in Lloyds Bank v Rosset [1991] 1 AC 107, by decision of the House of Lords.    [Back]

Note 13    The extent to which the courts will quantify the beneficial share by reference to the parties’ non-financial contributions remains unclear, and so a party who had made only a small financial contribution is not assured of a substantial share in recognition of other contributions and sacrifices: see 4.28 below.    [Back]

Note 14    R Probert, “Trusts and the Modern Woman: Establishing an Interest in the Family Home” (2001) 13 Child and Family Law Quarterly 275.    [Back]

Note 15    R Probert, “Land, law and ex-lovers” [2005] Conveyancer and Property Lawyer 168, 172: the woman had ceased her attempts to purchase a flat when the man offered to do so, and a trust was found to have arisen on the basis of Banner Homes Group plc v Luff Developments Ltd [2000] Ch 372. See generally A Lawson, “The things we do for love: detrimental reliance in the family home” (1996) 16 Legal Studies 218.    [Back]

Note 16    See R Probert, “Land, law and ex-lovers” [2005] Conveyancer and Property Lawyer 168, 171, contrasting the court’s willingness to acknowledge the value of the claimant’s “project management” activities. Note also the calculation that gross unpaid household production in the UK in 2000 was worth £877 billion: Office for National Statistics, Social Trends 36 (2006) p 86, table 5.27.    [Back]

Note 17    Fathers of dependent children are more likely to be working than mothers: 90% as compared with 67%: Office for National Statistics, Social Trends 36 (2006) p 53.    [Back]

Note 18    Though some research suggests that where couples’ money is managed separately, expenditure on the child is likely to come from the woman’s income: J Pahl, “Individualisation in Couple Finances: Who Pays for the Children?” (2005) 4 Social Policy and Society 381.    [Back]

Note 19    They could only do so as a form of “indirect” financial contribution to the acquisition of the property.    [Back]

Note 20    For relative employment rates of mothers and fathers, compared with men and women without dependent children, see Office for National Statistics, Social Trends 36 (2006) pp 53-54, table 4.4: mothers with dependent children are less likely to be in employment than those without; fathers with dependent children are, by contrast, more likely to be working that those without. Women aged 25-49 who are economically inactive (that is to say “neither in employment nor unemployment”) are most likely to cite “looking after family or home” as the reason for their employment status (44% of all such women); that is the least common reason cited for economic inactivity by men (6%): Office for National Statistics, Social Trends 36 (2006) table 4.26. (“Unemployment” is defined as “those aged 16 and over who are without a job, are available to start work in the next two weeks, who have been seeking a job in the last four weeks or are out of work and waiting to start a job already obtained in the next two weeks”: Office for National Statistics, Social Trends 36 (2006) p 51 glossary).    [Back]

Note 21    K Rake (ed), Women’s Incomes over the Lifetime (2000). Much of the following discussion in the text is taken from this source, in particular ch 5. See also data reported in HM Treasury et al, Choice for parents, the best start for children: a ten year strategy for childcare (2004) annex B.    [Back]

Note 22    K Rake (ed), Women’s Incomes over the Lifetime (2000) p 117. Although many mothers remain economically active, many work only part-time: 80% of the part-time labour force are women: Office for National Statistics, Social Trends 36 (2006) p 50. There is a lot of data about mothers’ employment patterns. 47% of working mothers (aged between 25 and 54) with one child and 63% of those with two or more children work part-time: HM Treasury et al, Choice for parents, the best start for children: a ten year strategy for childcare (2004) chart B8; see also charts B9-B10; these charts do not distinguish between married/ cohabiting mothers and lone mothers.    [Back]

Note 23    Where the woman cohabited with her partner, she will not be entitled to a Category B retirement pension or bereavement benefits (bereavement payment, widowed parent’s allowance and bereavement allowance): Social Security Contributions and Benefits Act 1992, ss 36, 39A, 39B, 48A and 48B. We discuss private pensions in para 3.73.    [Back]

Note 24    These costs are not included in the modelling of women’s income done by K Rake (ed), Women’s Incomes over the Lifetime (2000) pp 106-107 and p 114.     [Back]

Note 25    Although they may get some assistance from the child-care element of Working Tax Credit; see n 27 and 32.    [Back]

Note 26    [1984] Ch 317.    [Back]

Note 27    Working tax credit includes an allowance for 70% of “relevant childcare” costs up to a prescribed ceiling, according to the number of children: Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, SI 2002 No 2005, reg 20(3), as amended. 5% of couples with dependent children and 46% of lone parents received working tax credit in 2003/4: Office for National Statistics, Social Trends 36 (2006) p 125, table 8.18. On flexible working: Employment Rights Act 1996, ss 80F-80I, Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002, and Flexible Working (Procedural Requirements) Regulations 2002). On maternity and paternity leave: Employment Rights Act 1996, ss 71-80E, Maternity and Parental Leave Regulations 1999. See also HM Treasury et al, Choice for parents, the best start for children: a ten year strategy for childcare (2004); the Childcare Bill 2006 and the Work and Families Bill 2006. A higher proportion of female employees have requested and been granted flexible working than male employees: Office for National Statistics, Social Trends 36 (2006) p 59 and table 4.17.    [Back]

Note 28    Office for National Statistics, Social Trends 36 (2006) p 50.    [Back]

Note 29    See Part 7, Example 2 for an illustration.    [Back]

Note 30    See HM Treasury et al, HM Treasury et al, Choice for parents, the best start for children: a ten year strategy for childcare (2004) charts B7 and B10; B11 displays the data for mothers in couples and lone mothers separately (but without any distinction between full-time and part-time employment – see next note); lone mothers are less likely to be in paid employment, especially when the youngest child is under 5.    [Back]

Note 31    But note research which identifies financial inequality within some relationships, discussed by C Vogler, “Cohabiting couples: rethinking money in the household at the beginning of the twenty first century” (2005) 35 Sociological Review 1.     [Back]

Note 32    Though tax credits may assist with these costs, see n 27. Conveniently located and affordable child-care is not uniformly available: Office for National Statistics, Social Trends 36 (2006) p 126: 31% of lone parents and 23% of couples described local child-care provision in 2003 as “not at all affordable”; 34% and 41% respectively considered it to be “fairly affordable”; see N Lyon, M Barnes and D Sweiry, Families with children in Britain: Findings from the 2004 Families and Children Study (2006) Department for Work and Pensions Research Report No 340, ch 16; and F Williams, Rethinking Families (2005) p 29, reporting evidence from the TUC that childcare costs can amount to 25% of the average household income.    [Back]

Note 33    Mrs Cooke’s financial contribution of less than 7% of the purchase price of the property sufficed to give her a 50% beneficial share: Midland Bank v Cooke [1995] 4 All ER 562.    [Back]

Note 34    In a study of legally-aided cases, 70% of applicants in receipt of legal aid in land disputes were female; 19% were full time housewives or carers: T Goriely and P Das Gupta, Breaking the Code: The impact of legal aid reforms on general civil litigation (2001) ch 11. This study pre-dated major legal aid reforms in April 2000.    [Back]

Note 35    See para 3.32 (trusts) and 3.36 (estoppel).    [Back]

Note 36    See Example 6 in Part 7. It is harder to map the effects on men and women’s incomes of caring for vulnerable adults (as compared with child-care) owing to the diversity of such cases and the possibility that employment status may affect the likelihood that someone performs a caring role: K Rake (ed) Women’s Incomes over the Lifetime (2000) para 5.5.    [Back]

Note 37    See A Lawson, “The things we do for love: detrimental reliance in the family home” (2006) 16 Legal Studies 218; R Bailey-Harris, “Dividing the Assets on Breakdown of Relationships Outside Marriage”, in R Bailey-Harris (ed), Dividing the Assets on Family Breakdown (1998) p 81.     [Back]

Note 38    Midland Bank Plc v Cooke [1995] 4 All ER 562.    [Back]

Note 39    See Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211 and Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254, where the parties’ non-financial contributions get little if any mention during the court’s deliberations on quantification.    [Back]

Note 40    See para 3.37.    [Back]

Note 41    See Part 7, Examples 1 and 3.    [Back]

Note 42    If the home is rented, the statutory remedy of tenancy transfer is available (see para 3.55), and made economically viable by the availability of housing benefit.    [Back]

Note 43    Particularly in respect of the non-owning cohabitant where any occupation order will only last for up to 12 months: see 3.53. See Domestic Violence and Occupation of the Family Home (1992) Law Com No 207, para 4.10.    [Back]

Note 44    Figures from Performance Directorate, Her Majesty’s Courts Service. Data received from the Legal Services Commission show that 100 certificates for General Family Help or Legal Representation were issued in relation to applications for financial provision for a child between April 2004 and March 2006.     [Back]

Note 45    See Part 3, n 113.    [Back]

Note 46    Particularly compared with the numbers of orders made for ancillary relief on divorce each year: see Part 6, n 9.    [Back]

Note 47    M Maclean, J Eekelaar, J Lewis et al, “When cohabiting parents separate – Law and expectations” (2002) 32 Family Law 373.     [Back]

Note 48    See generally S Arthur, J Lewis, M Maclean, S Finch and R Fitzgerald, Settling Up: Making Financial Arrangements After Divorce or Separation (2002).    [Back]

Note 49    In Schedule 1 cases where the primary carer has no proprietary interest, he or she will receive no share in the capital value of the home.    [Back]

Note 50    Income support will cover some mortgage interest payments: Income Support (General) Regulations 1987, r 17 and sch 3.    [Back]

Note 51    Even if an applicant satisfies the court that it would be appropriate to make an occupation order simply to gain access to this provision, any order requiring the respondent to pay the mortgage (made under Family Law Act 1996, s 40) is unenforceable: see para 3.54. Any undertaking would also be unenforceable, and, unlike divorce cases, there is no power to order periodical payments in favour of the former cohabitant as a way of indirectly encouraging compliance with the undertaking: see Part 3, n 99.     [Back]

Note 52    Child Support Act 1991, s 4(10)(aa).    [Back]

Note 53    Care would need to be taken in such a case to avoid falling foul of the rule against capitalised maintenance: Phillips v Peace [1996] 2 FLR 230.    [Back]

Note 54    Any such discrimination would clearly violate Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), in conjunction with Article 8. For a recent strong affirmation of this, see Mazurek v France ECHR 2000-II, (2006) 42 EHRR 9.     [Back]

Note 55    Mr Justice Munby has suggested that Schedule 1 may not always give the child of cohabitants “the same outcome in real terms” as that provided to the child of spouses by the Matrimonial Causes Act 1973: “Families Old and New – the Family and Article 8” (2005) 17 Child and Family Law Quarterly 487, at 497.    [Back]

Note 56    See para 4.70.    [Back]

Note 57    See para 3.63.    [Back]

Note 58    Since that parent will no longer have dependent children living with him or her: Housing Act 1996, s 189.    [Back]

Note 59    Though housing benefit may be available.    [Back]

Note 60    See Part 7, Example 1 for the type of facts that would give rise to such problems.    [Back]

Note 61    Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254, at [75], per Carnwath LJ, a case dealing with the separation of a cohabiting couple.    [Back]

Note 62    The combination of applications might be used strategically, for example, the claim under Schedule 1 maximised to try to secure an increased beneficial share by way of settlement of the trust claim.    [Back]

Note 63    Disclosure of finances in Schedule 1 cases is made on Form 10A rather than Form E, the form used in ancillary relief cases on divorce. This is a simpler form, but it is not clear why the parties’ finances should be considered in so much less detail in Schedule 1 cases. A copy of the forms can be found at http://www.hmcourts-service.gov.uk/HMCSCourtFinder/FormFinder.do (last visited 4 May 2006).    [Back]

Note 64    Some, but not all, use the same procedure as that adopted in ancillary relief proceedings on divorce.    [Back]

Note 65    White v White [2003] EWCA Civ 924, [2004] 2 FLR 321.    [Back]

Note 66    Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211; and presaged by Midland Bank Plc v Cooke [1995] 4 All ER 562.    [Back]

Note 67    Although it has been argued that Oxley v Hiscock has, in practice, resulted in a stricter quantification process: see para 3.33 above. For criticism, see, for example, G Battersby, “Oxley v Hiscock in the Court of Appeal: the search for principle continues” (2005) 17 Child and Family Law Quarterly 259; M Thompson, “Constructive trusts, estoppel and the family home” [2004] Conveyancer and Property Lawyer 496; S Gardner, “Quantum in Gissing v Gissing constructive trusts” (2004) 120 Law Quarterly Review 541; E Cooke, “Cohabitants, Common Intention and Contributions (again)” [2005] Conveyancer and Property Lawyer 555    [Back]

Note 68    See Supperstone v Hurst [2005] EWHC 1309 (Ch), [2006] 1 FCR 352, at [60].    [Back]

Note 69    K Gray & S F Gray, Elements of Land Law (4th ed 2005) para 10.145.    [Back]

Note 70    Hansard (HC), vol 265, col 199.    [Back]

Note 71    Inheritance (Provision for Family and Dependants) Act 1975, ss 1(2) and 3(2A).    [Back]

Note 72    And there is obviously no possibility here, as there is in separation cases, of the relationship resuming.    [Back]

Note 73    Johnston v Ireland (1987) Series A No 112, (1987) 9 EHRR 203; Saucedo Gomez v Spain App No 37784/97, Commission decision of 26 January 1999 (unreported). In Johnson, the Court’s finding of family life related to all of the parties as a unit (parents and child). However, in Saucedo Gomez, the Commission found family life to exist between the couple of 18 years without reference to their step-children. Cf Secretary of State for Work and Pensions v M [2006] UKHL 11, [2006] 2 WLR 637, at [112], per Baroness Hale.    [Back]

Note 74    See X, Y and Z v UK ECHR 1997-II (GC), (1997) 24 EHRR 143.    [Back]

Note 75    See Mata Estevez v Spain ECHR 2001-VI: no “family life” between a same-sex couple of ten years’ standing with no children; the housing case, Karner v Austria ECHR 2003-IX, (2004) 38 EHRR 24, was decided on the basis of discrimination in the exercise of the right to respect for the home. The House of Lords was recently divided on the issue: Secretary of State for Work and Pensions v M [2006] UKHL 11, [2006] 2 WLR 637: contrast Lords Nicholls (at [24]-[30]) and Mance (at [126]-[153]), who hold that until the European Court holds that same-sex couples can have “family life” for the purposes of Article 8, it is not open to the domestic courts to do so. Lord Mance, however, goes on to state that, in light of recent developments throughout Europe, he has little doubt that were the European Court asked to consider the point today, it would find “family life” to exist between same-sex couples. Lord Walker assumes and Baroness Hale holds that a same-sex couple with children from their previous relationships have a “family life” for the purposes of Article 8, and do not address the issue considered by Lords Nicholls and Mance (at [87] and [112]); Lord Bingham implicitly makes the same assumption (at [5]).    [Back]

Note 76    Johnston v Ireland (1987) Series A No 112, (1987) 9 EHRR 203. This conclusion was reached despite the fact that the parties were legally unable to marry, there being no right at the time to divorce under Irish law – that law in itself did not violate the parties’ Convention rights. Cf Saucedo Gomez v Spain App No 37784/97, Commission decision of 26 January 1999 (unreported), at [68], where the Commission apparently attached importance to the fact that Spanish law did enable the couple to marry. Complaints relating to the status of the children in Johnston were upheld.    [Back]

Note 77    Prokopovich v Russia App No 58255/00, judgment of 18 November 2004 (unreported). The respondent’s property rights might often justify interference with that right; they will almost invariably justify removal of the non-owning partner under the current law in the absence of any claim or remedy under the general law or statute: Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 WLR 570.    [Back]

Note 78    Qazi v Harrow London Borough Council [2003] UKHL 43, [2004] 1 AC 983.    [Back]

Note 79    Marckx v Belgium (1979) Series A No 31, (1979-80) 2 EHRR 330, at [50].    [Back]

Note 80    Cf Whiteside v UK (1994) 76A Decisions and Reports 80 (Commission Decision), on remedies for harassment.    [Back]

Note 81    Rasmussen v Denmark (1984) Series A No 87, (1984) 7 EHRR 371.    [Back]

Note 82    See, principally, the legal relationship between unmarried fathers and their children.    [Back]

Note 83    As for discrimination on grounds of sexual orientation, the European Court has yet to bring same-sex couples within the scope of “family life” (see n 75) to provide the basis for a claim under Article 14 in conjunction with Article 8’s right to respect for family life. However, in light of recent developments in English law, notably the introduction of civil partnerships, creating a status analogous to marriage for same-sex couples, and the extension of many existing statutory provisions covering cohabitants to include same-sex couples who do not register a civil partnership, it would be proper to extend any reform in this jurisdiction equally to opposite-sex and same-sex couples.    [Back]

Note 84    This does not entail finding that that other right has been breached, simply that the factual situation under consideration falls within the scope of that right: see R Clayton and H Tomlinson, The Law of Human Rights (2000) para 17.86 and following.    [Back]

Note 85    Marckx v Belgium (1979) Series A No 31, (1979-80) 2 EHRR 330; Saucedo Gomez v Spain App No 37784/97, Commission decision of 26 January 1999 (unreported).    [Back]

Note 86    The European Court’s analysis of these cases varies: sometimes the analogy is denied altogether; in other cases, the analogy is (apparently) accepted but different treatment nevertheless justified.    [Back]

Note 87    Lindsay v UK (1986) 49 Decisions and Reports 181 (Commission Decision); cf PM v UK App No 6638/03, judgment of 19 July 2005 (unreported): tax relief for child maintenance payments must be extended equally to both unmarried (separated) and divorced non-resident parents.    [Back]

Note 88    Shackell v UK App No 45851/99, decision of 27 April 2000 (unreported); Quintana Zapata v Spain (1998) 92 Decisions and Reports 139 (Commission decision).     [Back]

Note 89    Saucedo Gomez v Spain App No 37784/97, Commission decision of 26 January 1999 (unreported).    [Back]

Note 90    This factor was emphasised in the recent Spanish cases; cf Johnston v Ireland (1987) Series A No 112, (1987) 9 EHRR 203.    [Back]

Note 91    Saucedo Gomez v Spain App No 37784/97, Commission decision of 26 January 1999 (unreported), as the decision of the first instance Spanish court demonstrated.    [Back]

Note 92    Noted by the court in Shackell v UK App No 45851/99, decision of 27 April 2000 (unreported). This has been most striking in relation to the Court’s treatment of same-sex couples and trans-gendered persons. The European Court’s relatively brief analysis of the discrimination point should be compared with the rather fuller discussion in the Supreme Court of Canada, considering the equivalent issue under the Canadian Charter of Fundamental Rights and Freedoms: Attorney General of Nova Scotia v Walsh [2002] 4 SCR 325. For one view of possible future developments on this issue, see A Barlow and G James, “Regulating Marriage and Cohabitation in 21st Century Britain” (2004) 67 Modern Law Review 143, at 169-70.    [Back]

Note 93    See discussion between the Joint Committee on Human Rights and the Government on discrimination arising from the exclusion of opposite-sex couples from civil partnership: Joint Committee on Human Rights, Fifteenth Report (2003-04) HL 136, HC 885 and Twentieth Report (2003-04) HL 182, HC 1187, Appendix 1. One English tribunal has expressed reluctance to strike out against clear European authority that cohabitants and spouses are not in analogous situations, in the context of tax law: Holland v Inland Revenue Commissioner [2003] STC (SCD) 43.    [Back]

Note 94    Thlimmenos v Greece ECHR 2000-IV (GC), (2001) 31 EHRR 15.    [Back]

Note 95    Even though they may not be required as a matter of ECHR law.    [Back]

Note 96    This depends on the substantive principles on which relief would be granted: see Part 6.    [Back]

Note 97    See Part 10.    [Back]

Note 98    See para 4.42.    [Back]

Note 99    Which is not contained in the Children Act 1989, sch 1.    [Back]

Note 100    To our knowledge, the European Court has only once considered whether the legal treatment of the parent on grounds of her marital status could be said to constitute discrimination against the child where the result is that the income of the household in which the child lives is less than that of a marital child (in the context of widow’s benefits): Shackell v UK App No 45851/99, decision of 27 April 2000 (unreported): “…whilst it is true that the applicant does not receive Widowed Mother’s Allowance, the reason for her not being eligible is that she and her late partner were not married. It is not related to the status of the children, and it follows that the applicant’s ineligibility for Widowed Mother’s Allowance [does not violate the rights of the children under Article 8 taken in conjunction with Article 14]”.    [Back]

Note 101    Similar arguments could be based on Article 8: see Logan v UK App No 24875/94, Commission decision of 6 September 1996, (1996) 22 EHRR CD 178, in the context of child support payments.    [Back]

Note 102    Bramelid v Sweden App No 8588/79, Commission decision of 12 October 1982, (1983) 5 EHRR 249, 255-256.    [Back]

Note 103    In Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, Lords Nicholls and Hope (at [42] and [106] respectively) both considered that Article 1 to the First Protocol was engaged by orders for ancillary relief made on divorce.    [Back]

Note 104    Bramelid v Sweden App No 8588/79, Commission decision of 12 October 1982, (1983) 5 EHRR 249, 256; applied in Burrows v UK App No 27558/95, Commission decision of 27 November 1996 (unreported) in relation to the operation of child support.    [Back]

Note 105    See Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816.    [Back]