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A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown

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A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown CARDIFF LAW SCHOOL RESEARCH PAPERS No: 1 A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown Report of a Research Study funded by the ESRC by Gillian Douglas, Julia Pearce and Hilary Woodward ISBN 0-9516976-7-6 This study was conducted jointly by Cardiff University and the University of Bristol Published by Cardiff Law School, Cardiff University Museum Avenue, Cardiff CF10 3AX, Wales, United Kingdom www.law.cf.ac.uk/research/researchpapers/paper1.html © Gillian Douglas, Julia Pearce and Hilary Woodward 2007 Series Editors: Richard Moorhead and David Nelken A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown by Gillian Douglas Julia Pearce Hilary Woodward 2007 First published in Great Britain in 2007 by: School of Law Cardiff Law School University of Bristol Cardiff University Wills Memorial Building Museum Avenue Queens Road, Bristol BS8 1RJ Cardiff CF10 3AX ISBN 0-9516976-7-6 www.law.cf.ac.uk/research/researchpapers/paper1.html www.bris.ac.uk/law/research/centres-themes/cohabit/cohabit-rep.pdf © Gillian Douglas, Julia Pearce and Hilary Woodward 2007 Gillian Douglas is Professor of Law at Cardiff University, Julia Pearce is a Research Fellow at the University of Bristol and Hilary Woodward is a Research Associate at Cardiff University. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the authors. Acknowledgements We would like to express our thanks to the following, whose kind assistance enabled us to complete this study. The research was funded by the ESRC and conducted during 2004 to 2007. Additional funding was provided by Cardiff University (Vice-Chancellor’s Fund) and the University of Bristol (Law and Policy Research Unit) to facilitate completion and production of this report. Access to court records was provided with the permission of the (then) Department for Constitutional Affairs and the Court Service. We would particularly like to thank Deirdre Back of the DCA Research Secretariat for her assistance in processing our application for access. We also wish to record our gratitude to the staff of the court where we conducted our file study for their help in enabling us to find and sort the records we needed. We could not have undertaken the study without the co-operation and support of professional practitioners – the family solicitors, conveyancers and mediators in the four study areas. The practitioners who agreed to participate in the study gave generously of their time not only to share their insights and perspectives at interview, but were also immensely helpful and patient with us, particularly when we made repeated telephone calls to seek their advice or to follow up queries arising from interviews. We also wish to thank the district judges and barristers who participated in our focus groups to discuss our preliminary findings and who provided their own perspectives on how these cases are handled in the courts. We would like also to thank James Sandbach, in the Social Policy Department of Citizens Advice, for his informative co-operation at the preliminary stages of the study, and also to the managers of the CABx in two of the study areas who assisted by providing us with information about the types of case they handle, and in offering views on the law and its problems. Most of all, we owe an enormous debt of gratitude to the 29 cohabitants who agreed to take part in the study. They were dealing with a very stressful situation, over what turned out to be, for many of them, an extended period of time, but they were unfailingly prepared to discuss very personal matters in frank detail. Their experiences, perceptions and views provided us with the greatest insights into the difficulties that arise when cohabitants separate and we hope that we have done justice to their accounts. We would like to thank Professor Emeritus Gwynn Davis, of the University of Bristol, who advised on the original research proposal, and Professors Nigel Lowe, Richard Moorhead and Mervyn Murch CBE, of Cardiff Law School, who offered advice during the study, read drafts of our report and provided many helpful comments for its improvement. We would also like to express our thanks to Professor Stuart Bridge and Jo Miles of the Law Commission for the opportunity to pass on our findings and discuss their implications for the Law Commission’s proposed reforms of the law. Finally our thanks go to Kay Bader for her feedback and invaluable help in the preparation of this report and to Carol Marks for her help with typing up the fieldnotes. Contents Page List of Tables i Table of Cases ii Chapter 1: Introduction 1 Research aims and questions 1 The specific population for study 2 Use of qualitative methods 3 Method 3 Report structure 5 Chapter 2: The demographic and social picture 7 Incidence of cohabitation 7 Duration and stability of cohabitation 8 Children of cohabiting couples 8 Pre-marital cohabitation 9 Cohabitation instead of marriage 10 Attitudes to cohabitation 10 Cohabitants’ knowledge of their legal position 14 Cohabitants’ property arrangements 15 Cohabitants’ separation arrangements 16 Summary 18 Chapter 3: The legal landscape 19 Introduction 19 The protection of cohabitation as a human right 20 Ownership of the family home in England and Wales 21 Establishing an interest 24 Quantification of shares in the property 29 Occupation of the family home 31 Statutory protection and recognition of cohabitants’ 32 property interests Powers where the cohabitants have a child – Schedule 1 34 to the Children Act 1989 Summary 36 Chapter 4: The cohabitants 37 Basic statistical data 37 General profile of the core sample 39 Attitudes to marriage 40 Financial arrangements during the relationship 43 Engagement with the law 48 Summary 53 Chapter 5: Property 54 Ownership 54 Agreements 55 Understanding of ownership at the time of purchase 56 Views of family solicitors 59 Conveyancing practice and procedures 60 Summary 67 Chapter 6: The issues 69 The cohabitants’ perspective 69 The legal perspective 77 Seeking advice 81 Summary 88 Chapter 7: The practitioners 90 The family solicitors 90 The mediators 98 Involvement of barristers 102 Summary 103 Chapter 8: The process of resolving the issues 105 Cohabitants resolving issues with minimal professional help 105 Negotiations 107 The Land Registry 113 Issuing proceedings 115 The duration of cases 119 The cost of cases 119 Summary 121 Chapter 9: Outcomes 122 How the cohabitants resolved their primary issues 122 Cohabitants’ satisfaction with the outcomes 124 The practitioner perspective 130 What if the cohabitants had been married? 133 Difficult cases 135 After the final order or agreement 136 Summary 137 Chapter 10: Conclusions and reform 138 The injustice created by the current law 138 Reform of the current law 139 The Law Commission’s proposals in 2006 141 A critique of the proposed scheme 144 Suggested reforms to property and conveyancing law 146 In conclusion 147 Appendices Appendix 1: Method 149 Appendix 2: Pen pictures 163 Appendix 3: Interview schedules 182 Bibliography 193 List of Tables page Table 1: Sample Profile 37 Table 2: Couples: Length of relationship/Financial contributions 43 Table 3: Couples: Property ownership / Banks accounts / Financial 45 Management Table 4: Home Ownership 55 Table 5: Means of resolution by issue for core sample participants 123 i Table of Cases A v A (A Minor: Financial Provision) [1994] 1 FLR 657 Re B (Child: Property) [1999] 2 FLR 418, CA Balfour v Balfour [1919] 2 KB 571, CA Barclays Bank plc v O’Brien [1994] 1 AC 180, HL Re Basham [1987] 1 All ER 405 Bedson v Bedson [1965] 2 QB 666, CA Bernard v Josephs [1982] Ch 391, CA Burns v Burns [1984] Ch 317, CA Chamberlain v Chamberlain [1974] 1 All ER 33, CA Chan Pui Chun v Leung Kam Ho [2002] EWCA Civ 1075 [2003] 1 FLR 23 Chapman v United Kingdom (2001) 33 EHRR 399 Cowcher v Cowcher [1972] 1 All ER 943 Curley v Parkes [2004] EWCA Civ 1515 Drake v Whipp [1996] 1 FLR 826, CA Draskovic v Draskovic (1980) 11 Fam Law 87. Re Evers’ Trust [1980] 3 All ER 399, CA Eves v Eves [1975] 3 All ER 768, CA Fender v St John Mildmay [1938] AC 1, HL G v G (Periodical Payments: Jurisdiction) [1997] 1 FLR 368, CA Gay v Sheeran [1999] 2 FLR 519, CA Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 Gillett v Holt [2000] 2 FLR 266, CA Gillow v United Kingdom (1986) 11 EHRR 335 Gissing v Gissing [1971] AC 886, HL Goodman v Gallant [1986] Fam 106, CA Grant v Edwards [1986] Ch 638, CA Greasley v Cooke [1980] 3 All ER 710, CA. H v P (Illegitimate Child: Capital Provision) [1993] Fam Law 515 Hammond v Mitchell [1992] 2 All ER 109 Harwood v Harwood [1991] 2 FLR 274 Harrow London Borough Council v Qazi [2003] UKHL 43 [2004] 1 AC 983 Horrocks v Forray [1976] 1 All ER 737, CA Huntingford v Hobbs [1993] 1 FLR 736, CA J v C (Child: Financial Provision) [1999] 1 FLR 152 Jones v Challenger [1961] 1 QB 176, CA ii K v K (Minors: Property Transfer) [1992] 2 All ER 727, CA Karner v Austria (2004) 38 EHRR 24 Keegan v Ireland (1994) 18 EHRR 342 Kroon v Netherlands (1995) 19 EHRR 263 Laird v Laird [1999] 1 FLR 791 Lebbink v Netherlands [2004] 2 FLR 463 Le Foe v Le Foe and Woolwich plc [2001] 2 FLR 970 Lloyds Bank plc v Rosset [1991] 1 AC 107, HL Mesher v Mesher [1980] 1 All ER 126 Midland Bank plc v Cooke [1995] 4 All ER 562, CA Midland Bank plc v Dobson [1986] 1 FLR 171, CA Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [2006] 2 AC 618 Oxley v Hiscock [2004] EWCA Civ 546 [2004] 3 All ER 703 Re P (Child: Financial Provision) [2003] EWCA Civ 837 [2003] 2 FLR 865 Pascoe v Turner [1979] 2 All ER 945, CA Paul v Constance [1977] 1 All ER 195, CA Pettitt v Pettitt [1970] AC 777, HL Rowe v Prance [1999] 2 FLR 787 Royal Bank of Scotland (No 2) v Etridge [2001] UKHL 44, [2002] 2 AC 773 Saucedo Gomez v Spain Application No.
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