Co-Ownership
There are two ways in which a house can be purchased in joint names – as joint tenants in equal shares or as tenants in common in whatever amount is specified. Courts were prepared to determine what the shares should be only in the absence of a clear declaration in the Conveyance/Transfer, but would not vary interests which were clearly stated.

This approach may have been changed by the Court of Appeal decision of Stack –v- Dowden, which appears to provide authority for the proposition that even if the basis of ownership is made clear in the purchase document, the Court can nevertheless look at the “whole course of dealing” between the couple “in relation to the property”; although the fact that it has been registered in joint names is something which would be taken into account.

It is therefore essential that clear advice is given to couples wishing to buy a house together, and that their intentions be made clear at the outset.

Financial Provision After A Short Marriage
After a childless marriage of only 2 ¾ years, the Court of Appeal awarded Mrs Miller a lump sum of £5m (not much less than 25% of the capital), despite the fact that all of the wealth had been generated by Mr Miller before he married his wife. One important factor was that Mr Miller was to blame for the marriage breakdown, having left his wife for another woman. The court considered that Mrs Miller should be compensated for the loss of a legitimate expectation that she would live at a higher standard of affluence on marriage.

As the decision in this case was inconsistent with the previously accepted principle - that conduct should not be taken into account unless extreme, Mr Miller appealed to the House of Lords. Although the Court confirmed that conduct was not relevant, they upheld the original award on the basis that the assets had increased by £10m during the course of the marriage - assets acquired or which increase in value during the course of a relationship should be shared equally.

It is possible that the outcome would have been different had Mr & Mrs Miller entered into a pre-nuptial agreement.

Co-habitation Agreements
Many people believe that those who live together acquire rights under a “common law marriage”. They do not. The common law wife is a myth. In reality, rights of a co-habitee are few and far between. Whilst this often leads to injustice, one advantage is that co-habitants are not constrained by the law, and can dictate their own terms for the relationship by entering into a Co-habitation Agreement. It is best to limit the terms of a Co-habitation Agreement to financial and property matters to ensure that it is enforceable, but domestic issues can be recorded in a separate memorandum attached to the deed.

For further information contact Carol Maher (Partner) Specialist Family Solicitor and Mediator

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