The highest Court in England and Wales recently ruled in a case where a man left his partner nearly twenty years ago and whom had been claiming half the value of the joint property they had previously shared. His partner had been in occupation and solely paid the mortgage for thirteen years. Instead, he was awarded 10% of its value. The property had been purchased in 1985 in joint names and they broke up in 1993. In 2008, it was valued at £240,000. Originally, the Court of Appeal decided an equal split was appropriate as the property was in joint names and since separation, neither had done anything to change the position. However, Supreme Court Judge Lord Kerr disagreed and ordered a 90% : 10% split as was originally imposed by the County Court Judge at first instance because it was "a fair one between the parties”. Whilst more clarity in the law has been called for, the fact remains the parties could have given the additional commitment of marriage. This gives the Court very great flexibility to take account of need as well as fairness. Here, they were not married so a Trust of Land was created in respect of the property. As it was in joint names, the starting point would be the parties held the beneficial interest in the same manner they held the legal interest, therefore, jointly and so, equally. However, once established, there was an intention to create a Trust and there was reliance upon that to financial detriment (from 1985 when the house was purchased until 1993 when they separated, full contributions had clearly been made by him) the matter fell to the full discretion of the Court to account for what is fair in the circumstances and of what was intended.

Calls for additional prescription which as in Scotland gives couples living together rights and obligations between them to take account of economic advantage gained or economic disadvantage suffered, does not in my view give the clarity sought.

The most difficult cases involve property being in one party's sole name. One then has to assert there was a common intention, either at the time of the purchase or subsequently, that the Claimant non owner has an interest in that property and which they have subsequently relied upon to their financial detriment.  Financial detriment prior to any such promise or any common intention being established does not assist. One should be mindful of the old legal maxim, "equity does not assist a volunteer”. This intentional promise can be expressed in documentation or may have been provided verbally, in which case it will be for the Court to establish who it believes. The Court can look at all the evidence including that given in Court by the parties and whether such an intention can be inferred by the conduct of the parties. This can include not just what was said but also what had been done. For instance, the Court could infer, in spite of denials, there was greater evidence for a common intention that the property held in the sole name of one party was to be shared between two parties by virtue of the fact that the Claimant would not otherwise have helped physically build the property, planning its design, laying the foundations, doing the bricklaying and therefore substantial building work for no reward. This would be far more than would be generally expected between two parties if one knew he was not going to have a share in the property. Another example of this might be where one party claiming a share, is unsuccessful because the work and input claimed into the property held by the other really amounts to decoration and painting as would normally be expected to be undertaken between parties in the relationship at that time. 

Once intention has been established, either expressed in documentation or found to have been expressed by finding of fact taking into account the parties' recollections or otherwise inferred by virtue of conduct, the Court then looks to see if the Claimant has relied upon that. If so, was it to their financial detriment? Once these hurdles have been surmounted, the Court have provided themselves with a very broad discretion to look at what was intended by the agreement they have found to have existed. They can look at generally what would be fair in all the circumstances of the case as well as what was intended.

It will always be the case there must be significant flexibility for the Courts in dealing with the financial fallout of a breakdown in relationships, whether married or not. Just as there is significant discretion for the Court to apportion assets once these principles have been established, so it is also the case between married couples. One suit cannot fit all. Presumably, back in 2008, the house was worth considerably more than it is now. In the immortal words of Paul Vallen, "The future is not what it was”. 

Lee Marston became a Partner at Clough & Willis in 2001 and heads up the Family Law department. Lee is also a member of The Law Society Family Panel and a Resolution accredited specialist.