equity

Don’t Play Games in the Courts

There is a concept in law known as equity and the courts can sometimes use equitable principles of discretion to assist in civil cases. It is important to note that equity, which is a historical common law doctrine associated with fairness, does not apply to all cases, but for obvious reasons, it can be very helpful in a variety of civil law claims.

For a Judge to help out with a case by using equitable principles where available, it is common sense that he or she is only likely to do so where the person asking for it has played fair. In fact, there is a longstanding legal principle applying to equity, as follows :-

“he who comes to equity must have clean hands”

The inference from this is crystal clear.

A recent case clearly demonstrates how this works in practice.

In the Court of Appeal case of Jameer v Paratus AMC the case involved a mortgage possession action.

In summary, as is customary in these cases, the borrower was given every opportunity to try and avoid the property being repossessed by the mortgage lender. Over a period of several years, the case progressed to the point where a suspended possession order was made. This is in effect, the “last chance saloon”, an Order for possession is on record and the borrower needs to comply with payment terms or otherwise the lender can proceed without further court orders.

In this case, the borrower still was unable to comply and a possession warrant was ordered. The borrower then applied for this to be suspended on the basis that her financial situation was improving. The judge refused that application and the case ultimately reached the Court of appeal.

The issue in the Court of appeal was whether the lower Court should have exercised discretion in the borrower’s favour ? Her problem was that she claimed that her financial situation had improved but had failed to provide sufficient or accurate information to the court.

The point about this case is that the borrower had made obvious omissions in the documents she presented to the court and therefore was not entitled to any further discretionary help. In effect, she had not come to court “with clean hands”.

 

The upshot of this case is that it does not pay, whatever the underlying motives, to adopt a “cat and mouse approach” to court proceedings. This is a common situation in my experience and parties to litigation should remember that equity is often an important shield against an adverse ruling, so it makes sense to be completely open and honest with the court at all times.

 

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

 

When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

About Equity

We need to talk about Equity……even if only here in the general sense.

If you look in a dictionary for the meaning of “equity”, the definition you are likely to get will encompass such things as ‘fairness’, ‘impartiality’, ‘being just’.  Look further down the entry and you might see something along the lines of “a branch of law that developed alongside the common law and is concerned with fairness and justice”.  You might even see something like “a system of jurisprudence supplementing and serving to modify the rigor of the common law.”

All well and good, but what does that mean when talking about the law of Equity.  At first glance the branch of law that is Equity can seem intimidating – it has its origins in history which makes it appear out-dated and no longer relevant; it comes full of abstract and technical terminology, apparently making it  difficult to access.  Everyone knows what it means to steal something, committing a crime; everyone has an idea what contracts arise.  However, while we might recognise words such as fairness or impartiality, it is often problematic to put these concepts into legal practice.

Equity arose out of historical accident, progressing from the petitioning of the 13th century Lord Chancellor for remedy on the grounds of conscience and fairness outside the strict rules of the Common Law, to the development of the distinct court of Chancery (heavily criticised in Dickens’ Bleak House) and finally to the combination of the common law and equitable jurisdictions into one Supreme Court.  What this means in practice for the litigant is that all judges are able to administer the Common Law or Equity regardless of the forum in which the claim has been brought.   That being said, certain matters are assigned to the Chancery Division (for example claims relating to land, mortgages, administration of estates, probate business, certain intellectual property rights, bankruptcy, partnerships).

So, Equity stands alongside the Common Law, but it remains a body of law in its own right.  The “trust” is perhaps the most easily recognisable and important development of Equity.  It is, perhaps, also the ultimate and blatant example of what is meant by Equity interfering with the strictness of Common Law.  The trust acknowledges that property rights can extend beyond legal title and that ownership can be separated between the legal management and control of the asset and the equitable right to benefit and use that asset.  However, beyond the recognisable consideration of the use of trusts in the context of private tax planning, family property and wealth, Equity and the trust can (and does) provide legal solutions not only in the context of family disputes, but also in the commercial arenas of conveyancing, investments, fiduciary relationships, market transactions, insolvency and charities to mention a few.

Additionally, in contrast to the strict rigours of the Common Law, and in mitigation against the apparent harshness of the Common Law, Equity has an on-going ability to develop and change.  It is this flexibility that enables Equity to respond more readily to social needs.  Given the breadth of its scope and the potential assistance it might offer the litigator in person, it is something which does need to be understood if it is to be used to its fullest potential.

However, while Equity may have its beginnings in concepts of fairness and justice, it is important to remember that Equity is not a court of good conscience or morality, it is a court of law.  Equity has its own body of legal rights and rules; a litigant wishing to claim his/her equitable rights or seeking an equitable remedy cannot just argue “justice demands it”; he/she must show that their claim is supported by the practices and precedents of Equity that have developed over time.  As was stated in the well-known case involving the administration of Farepak Food and Gifts Ltd, “at the end of the day … claims have to be based in law, not sympathy.”

So, just as with Common Law, equitable rights are exercised and remedies given only by applying well-known principles.  Some aspects of the jurisdiction are strict and technical.  However, unlike Common Law, other areas allow for an exercise of considerable discretion by the courts.  Equity is, therefore, a body of rules which is constantly being developed, moving into new fields of application, but only where the established principles allow.

This may sound like a contradiction – the court being able to exercise its discretion but in accordance with clear, and perhaps, rigid principles.  And that is perhaps the challenge of Equity, understanding the relationship between the two.

A good place to look to get a clearer idea of how Equity works is to consider some (there are quite a few) of its general principles – called “maxims”:-

Equity will not suffer a wrong to be without a remedy – where it can, Equity will step in and find a remedy when one is not available at Common Law

Equity follows the law – Equity cannot override the Common Law and it cannot ignore statute.  Nor will Equity unnecessarily depart from legal principles

If Equities are equal – the law prevails/the first in time prevails – where there are two people with competing rights, the one with the legal right will triumph; where two equitable rights go head to head, the right created first will take priority

Equity looks to the substance not form – Equity will look beyond what something is called; it will look to see the nature of what was actually undertaken (a spade will still be a spade, even if the manufacturer calls it a fork)

He who seeks Equity must do Equity – if you are going to seek remedy in Equity, then be prepared to act fairly towards your opponent if you succeed

He who comes to Equity must come with clean hands – if you are going to seek remedy in Equity, then make sure that your own behaviour in relation to you claim is not tainted with illegality or misconduct as Equity will not support you

Delay defeats Equity – this works just like limitation at Common Law; failing to claim your equitable rights within a reasonable time means that Equity will not come to your aid

Statute cannot be used as an instrument of fraud – Equity will not deny a claimant his/her rights merely because of a failure to comply with the legal formalities laid down in statute

Where Equity and Common Law conflict, Equity will prevail – where there is a conflict between the two sets of rules in relation to the same matter, it is the rules of Equity that will take precedence

These maxims offer guidance, signposts if you will, as to how Equity might be applied and are starting points for how the court might exercise its discretion.

For the potential litigant, another good way to understand Equity is to consider what remedy Equity could provide as this is perhaps where the court has been (and can be in the future) its most inventive.  Remedies at Common Law arise as of right, but are generally couched in terms of damages, monetary compensation.  Equity, however, supplements this to provide its own remedies, albeit on a discretionary basis, when mere compensation is inadequate in the circumstances.

For instance, specific performance – while at law everyone is free to breach a contractual obligation and become liable for damages if they wish, Equity might compel the performance of that contractual obligation if those damages are inadequate compensation.  Similarly, through the injunction, Equity can order someone to stop doing or compel them to do something, where the awarding of damages to protect an existing right at law would again be an insufficient remedy.   It is Equity which now enables litigants to obtain search orders so as to secure evidence from destruction and/or disposal and freezing orders so as to prevent disposal of assets to circumvent enforcement of a legal judgement.  As a protection against contracts or transactions brought about by mistake (as to facts or law) or tainted by undue influence (whether by improper pressure or the taking of unfair advantage) it is Equity which provides for rescission, where the transaction is made unenforceable at law or for rectification, where documents can be amended to carry out the actual intention of the party or parties.  A fiduciary’s duty to account generally or for unauthorised profit is another remedy arising in Equity.  It is Equity which provides more flexible mechanisms for recovering property derived from misappropriated assets – tracing.  And beyond its use as a means of family provision and wealth protection, it is Equity’s creation, the trust, with its separation of ownership, which has provided the court with a device, the constructive trust, to provide protection to co-habitees in the acquisition of shared property.   Trust and equitable principles have also been applied to aid the safeguarding of customers’ and lenders’ funds in the face of insolvency.

As has been said previously, equitable rights are exercised and remedies given only by applying well-known principles- litigants seeking these rights or remedies must satisfy the established principles.  So when a remedy is sought, litigants will need to consider whether their claim can at a basic level satisfy those fundamental requirements – for instance, the co-habitee seeking to acquire a share in the family home, must evidence both a common intention between parties in relation to that share as well as detrimental reliance on that intention.  And what is sufficient evidence for Equity is also laid down in those established principles.  Similarly a claimant seeking to use equitable tracing to reclaim misappropriated assets must evidence a breach of fiduciary obligations to obtain a remedy.

There may be a remedy available to a litigant in Equity.  However, whether Equity will offer a litigant that remedy will depend on whether that litigant can establish that there has been an unconscionable abuse of common law rights and powers.  Additionally, they will also have to evidence that their claim satisfies the basis requirements of Equity in light of the remedy sought.  It will not be enough merely to argue in Equity for fairness; the litigant will need to identify and understand the components needed to underpin their claim.  And, even if the litigant is certain they have met all the requisite criteria, remedies from Equity are at the discretion of the court; there are no guarantees.

That is why we cannot ignore Equity and we need to talk about it and understand it.  This may be just the beginning.

 

Alison Bicknell

 

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Family Law Mediation

– what you need to know

 

Family mediation is a form of Alternative Dispute Resolution (ADR) which helps you reach decisions about things that are important for you and your family, without having to go through the court process.

The Benefits of Mediation

Mediation gives you the opportunity to take your time and think about the issues that are important to you, whether it be arrangements for your children as they grow up, how to deal with money within the marriage or options of where you will live. The process moves at your pace, which ensures you can carefully consider each issue rather than rushing through it.

Mediators will listen to you to find out what is important to you, and help you make your own choices about how to move forward. Once you and your partner are satisfied with the decisions you have made, you can then instruct a solicitor to complete the legal formalities.

You can also consult your own solicitor during the mediation process, to check that the choices being taken are in your best interests.

Mediation Information & Assessment Meeting (MIAM)

Mediation has become a more central part of family law since the changes in law which now require you to attend a Mediation Information & Assessment Meeting (MIAM) before issuing an application to commence financial proceedings or proceedings under the Children Act. This assessment meeting gives you the opportunity to see how mediation works, and allows the mediator to work out with you whether mediation will be suitable for you and your family. The mediator should discuss how many sessions you may need, how much they cost and whether you are eligible for legal aid to pay for mediation.

In most circumstances, whomever is applying to the court for a financial order or a child arrangements order will have to attend a MIAM. The other person involved is also expected to attend, but they do not have to go to the same meeting as you. There are exemptions, particularly if domestic violence has arisen within the relationship.

If everyone agrees at the first appointment that mediation would work well, you will book further mediation sessions. It normally takes between three and five meetings to come to an agreement, depending on the issues in question.

Mediating with Children

Older children are now also becoming part of the mediation process, if mediation is about child arrangements. If the mediator you have chosen is happy to do so, they can talk to the children of the family about what they would like to happen, so that the parents can make decisions which take into account their children’s wishes as well as their own.

 

Alison Bicknell

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Information to support your case

- obtaining it or having to disclose it

 

It is thought that ”information is power” and making information available to the court and the parties to a claim has long been an integral part of the litigation process. Historically, the court of equity was the initial conduit for the process of the disclosure of information, ”discovery” as it was. It used to be that, at common law, a party could not be a witness in his own case – neither the claimant nor the defendant could be their own witness (!). As a result, the earliest bills in Chancery sought discovery of facts relevant to the claimant’s (then called the plaintiff) case to assist in achieving fair and equal judgment. With the passage of time, although the aims of discovery were recognised as valuable for litigation, its development led to onerous obligations on both parties, in terms of time, risk and cost. Often, it became a weapon which was capable of producing, in equity, as much of an injustice as it initially sought to guard against.

   
Fast forward to the 21st Century and the reforms brought about by ”Access to Justice” and the Jackson recommendations. Discovery, now renamed ”disclosure”, is still considered a vital element of litigation. It is recognised that there are substantial overall benefits to the exchange of information at an early stage of the proceedings - ensuring equality of access to evidence and possibly facilitating early settlement when parties have clarification of the strengths and weaknesses of their case. Discovery was, however, also ripe for reform given the perceived problems with the often disproportionate costs involved (and the possible, resulting undermining of access to justice), the practicalities of putting together often formidable court bundles (which were then largely unlooked at during a trial) and the ever-increasing need to deal with information contained in an electronic format.


So, what is disclosure? According to the Civil Procedure Rules (the ”CPR”), disclosure is merely a formal statement that a ”document exists or has existed”. And what is a document? The definition here includes ”anything in which information of any description is recorded” - written documents, audio tapes, videotapes, photographs, as well as electronic documents (emails, WP documents, and databases) are covered. Also covered is material not readily accessible (for example, electronic documents stored on servers and backup systems) as well as electronic documents which have been deleted. However, it is important to appreciate that it is the information contained within the document and its relevance to the issue(s) in dispute that determines whether or not a document is disclosable. 


It is possible, in certain circumstances, for this disclosure to occur before proceedings have even been commenced. There are specific pre-action protocols across a range of dispute types as well as a general Practice Direction covering pre-action conduct. In these, potential litigants are actively encouraged to disclose relevant documents informally at an early stage (albeit only those documents which support their claim). The objective is to provide parties with ”sufficient information …to allow them to understand each other’s position”. The aim is to aid the potential parties to make ”informed decisions about how to proceed and possible approaches to settlement, possibly avoiding litigation completely”. These pre-action protocols carry much weight with the court. Knowledge of the requirements suggested by them and subsequent compliance with those suggestions is an important consideration for any potential litigant. The court has a discretion to order sanctions against a party in the face of non-compliance – in relation to disclosure, refusing to release documents has led to cost consequences for the non-compliant litigant.


Additionally, the court has various statutory powers (depending on the court/tribunal or the nature of the claim) to order disclosure from a potential party to subsequent proceedings. Under CPR31.16, there are a number of criteria that need to be satisfied for the court to consider an order for what is called pre-action disclosure - the application is between the likely parties to subsequent court (rather than arbitration) proceedings, the documents are going to be disclosable in those proceedings in any event, pre-action disclosure would be beneficial in terms of fairness, assisting in resolution of the dispute without proceedings and the lessening overall costs. Even if these criteria are met, the court has further discretion as to whether to grant such an order. 


In exercising this discretion, the court will consider things such as the nature of the claim, its potential merits and the clarity of the issues involved, the costs (both in granting the order and the impact of not granting the order), the documents sought (their volume and nature), whether the information is available from other sources, and the previous conduct of the parties (this is where compliance or non-compliance with pre-action protocols in relation to disclosure may also impact positively/negatively on a litigant’s application).

  Any documents disclosed at this pre-action stage (whether informally under a pre-action protocol or by court order) can generally only be used for the purposes of the anticipated proceedings.


Once proceedings have been commenced, the court has a further power to order disclosure against a person who is not a party to those proceedings themselves. However, there are limitations as to when such orders may be made. The information sought must only be available from the third party. Additionally, the documents to be disclosed must be likely to support the applicant’s case or adversely to affect the case of another party to the proceedings and disclosure must be necessary to dispose of the claim fairly or to save costs.


Again, even if these criteria are satisfied, it is still the court’s discretion as to whether the order will be made. For instance, no order for disclosure against a 3rd party will be given if compliance would be injurious to public interest. Nor will it be given if the definition of the document or the class of documents is not sufficiently clear and specific in the application itself. The court will also consider the interests of the non-party to protect his privacy and the confidentiality of the documents against the interests of the party seeking disclosure. This is a remedy of last resort; such an order is not going to be given routinely as the court will need to balance the rights of the 3rd party against the need of the applicant in relation to the case (the ability for it to be dealt with fairly or to save costs).


There are other well-established situations (either pre or post the issue of proceedings) where an equitable remedy involving disclosure may be ordered against 3rd parties by the court in very specific circumstances, seeking to achieve very specific results. For instance, these include:-


(a) Norwich Pharmacal orders – where an application can be made for disclosure of documents and/or information from a 3rd party who, while a non-party to the litigation, is somehow involved or mixed up in the wrongdoing (innocently or otherwise), and
(b) search orders (formerly Anton Pillar orders) - a form of mandatory injunction from a master or district judge in the High Court. Such an order allows for entry to the defendant’s premises to search for, copy and remove documents and/or material in relation to the dispute. The aim is to prevent evidence being lost or destroyed. However, given the nature of the application and its potential impact, the application must be based on a very clear case with clear evidence of the document in the defendant’s hands as well its possible destruction.

In deciding whether pre-action disclosure or disclosure from a third party would be appropriate, the court is looking to balance finding a resolution to a dispute without recourse to actual proceedings as against assisting with an applicant’s nebulous claim. The court’s various powers in relation to requiring the disclosure of information (whether pre-proceedings between the parties or from a 3rd party) are important considerations for a potential litigant. Knowing and understanding the jurisdictional criteria that need to be established for any such order are important tools in the litigant’s arsenal.

 

Alison Bicknell

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

The myth of “common law marriage”

– Equity’s role in providing redress

According to the Office for National Statistics, the number of opposite-sex cohabiting couples in 2013 was almost double the figures from 1996.   In relation to opposite-sex cohabitation, the statistics do appear to confirm a substantive shift away from marriage.  For same-sex cohabiting couples, the increase over the same period is believed to be in excess of 400% (even allowing for the introduction of civil partnership in 2006.)

In a recent, 58% of the respondents thought co-habiting couples who live together for some time “probably or definitely” had a “common law marriage” which gave them the same legal rights as married [or civil registered] couples.  This is despite extensive media coverage across a variety of platforms stressing that cohabitation, regardless of its circumstances and length, does not bring with it a general protected legal status.  The Ministry of Justice has even funded a “Living Together” campaign to address this common misconception seeking to make cohabitants more aware of their legal status (or more accurately their lack of legal status) and how to protect themselves.

In the 2011 census, 10% of adults indicated that they were cohabiting – many are likely to be doing so without realising the full consequences of their position.

While MPs, the Law Commission, senior members of the judiciary and family lawyers may strenuously argue the point (both for and against a change in the law), the fact remains that for those increasing numbers of cohabitees (whether opposite or same sex) there remains no legal recognition of their relationship and therefore, no guaranteed or even presumed rights to ownership of each other’s property when that relationship breaks downs.  Nor is there any statutory guidance regarding the division of assets in these circumstances (compared to on divorce or dissolution of a registered partnership).

It is possible for cohabiting partners to contemplate (however painful it might be to do so) the possible breakdown of their relationship and agree for themselves the ownership of their joint home.  However, in the absence of this foresight, when, on relationship breakdown, property disputes escalate into litigation, cohabitees are reliant on the courts making orders based on legal rules arising from Equity.  There is some perception that, given the current social environment, a more sympathetic judicial approach might be evolving when it comes to the assessment of the property rights of co-habiting partners.  However, as one Supreme Court justice highlighted “the absence of legislative intervention [makes] it necessary for the judiciary to respond by adapting old principles to new situations…..not an easy task.”  However, as another member of the judiciary has also said, “[judges have to] ignore human sympathies and apply the law”.

So how does the judiciary approach these disputes between cohabitees?  What is the law that guides their decision making? They look to Equity’s most recognisable creation, the trust.

 A trust gives rise to a split in the ownership of the property forming the subject matter of the trust.  This split relates to the separation between the “legal” interest in the property – the public face of ownership, associated with the responsibility to manage and control that property – and the “beneficial” interest of the property – those who are actually to benefit from the property (i.e. have a right to occupy, a right to the sale proceeds and/or rental income).  The holder(s) of the legal interest are the trustees while those with the beneficial interest are, unsurprisingly, called the beneficiaries.  The trustees are under a duty to look after the property for the benefit of those beneficiaries. It should, however, be noted that having a “beneficial” interest in the property does not necessarily mean that those beneficiaries have equal interests in that property.

For cohabitees, this trust structure can mean different things depending on the circumstances relating to the “legal” ownership of the property:-

  • It is possible for cohabitees to buy property together and for both to be named as the legal owners.  While they are joint, “legal” owners, they may also be beneficial owners of the property.  In the absence of any contrary evidence (i.e. an express written statement by the beneficiaries), there is a presumption in law that the beneficial interests are to be shared equally.  However, it may be the case that, in the circumstances, one beneficiary will have (or believe that they are entitled to) a larger share. 

 

  • It is also possible for only one cohabitee to be named as the sole legal owner.  While there may be a very sound reason for this to have occurred and the sole legal owner may be very clear that he/she has legal ownership for the benefit of both cohabitees (again by way of written document expressly stating this),  it is also a scenario which can give rise to significant dispute. The presumption here is that the beneficial interest mirrors the legal interest – there is no presumption of joint beneficial ownership – and one cohabitee (the one without the legal interest) will find him/herself having to provide sufficient evidence for a judge that a trust actually does exist and they are entitled to some kind of beneficial interest.

As there is no legislation to guide the court, it is equitable principles established in case law that will determine the circumstances and evidence that the court will be looking for to see if a beneficiary is entitled to a larger beneficial interest or is entitled to a beneficial interest at all.


An important consideration to remember is that if the cohabitees agree for themselves the nature of the beneficial interests in their joint home and then documented this in a written deed, the court is unlikely to look beyond this agreement (unless there is a clear error or undue influence). However, more often than not, cohabitees, in the initial glow of their relationship, look at sorting out legal issues as unromantic and there is no agreement to provide clarity and stress-free resolution.


When the court is asked to make a decision, they will be forced to interpret evidence to see if they can identify the intention of the parties in relation to the ownership of the” joint” home.


So what will the court be looking for?


Before the property was bought (or at some time later in the relationship), is there evidence of a common understanding or agreement that the property was to be shared.  Direct financial contributions in relation to the property (i.e. direct payments to the purchase, taking on the burden of/paying off a mortgage, monetarily contributing to an extension) would be a good indication of such an understanding, even if there was no explicit discussions between the parties.  These financial contributions can be taken into account in determining whether a trust exists at all (and the property is therefore shared beneficially) and/or determining the size of any beneficial interest.


Historically, direct financial contributions have been the only indicators that a court would consider to decide these arguments.  Currently, direct financial contributions are, to a certain extent, still the primary considerations in determining whether the parties did have an intention to share ownership of the property, that a trust of the joint home existed notwithstanding that the “legal” interest is only registered in one of the parties (although the court will look closely as to why the legal interest is not in the name of both). 


However, these financial contributions are not the critical factors they once were, especially in determining the size of each beneficiary’s share.  More recently, the court may arrive at its decision by taking a more “holistic” look at the parties’ conduct in relation to the property (rather than the relationship itself) during their period of ownership to determine what the parties intended in relation to the property.  In the absence of any intention being evidenced, the court will look to the parties’ “whole course of dealing” to determine what it considers fair.  The length of time that the parties have co-habited is not necessarily relevant.  However, while financial contributions will still be relevant, now courts will also take into account things such as the advice given to the parties at the time of purchase (or a re-mortgage), the purpose for which the property was acquired, the financial arrangements of the parties, how the parties discharged the property outgoings (i.e. council tax, utilities, repairs, insurance).


As with any court proceedings, the courts will have to rely on evidence to enable them to understand the situation.  Given that “context is everything”, each dispute will turn and be decided on its own facts.   It is to be anticipated that the parties will be called upon to give oral evidence (and should be prepared to do so).  Given the strong feelings that these disputes often arouse and the impact that this can have on oral evidence, courts are likely to place more weight on documents where they are available – a conveyancing file from the time of purchase (or any re-mortgage), bank statements and other financial documents from both before and after the property was bought.


For the foreseeable future, cohabiting couples are likely to remain without guaranteed rights of ownership of each other’s, or what is thought to be joint, property on relationship breakdown.  It is open to couples to regulate their relationship in legal terms should they wish to.  However, what couples must recognise is that if they do not elect to establish their rights for themselves, the mythical concept of ”common law marriage” will not safeguard them.  Upon relationship breakdown, they will be looking to time-honoured equitable principles and the concept a trust for assistance.

 

 

Alison Bicknell

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.