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The reality is that there is a stark difference in the way the law treats people who separate when they are cohabiting rather than when they are married or in a Civil Partnership. However, the number of people cohabiting outside of marriage in the UK is rapidly increasing.

The recent case of Dobson v Griffey [2018] is a reminder of the differences between the law for cohabiting couples under the Trusts of Land and Appointment of Trustees Act 1996 and the Matrimonial Causes Act 1973 for married couples.

Jacqueline Dobson and Matthew Griffey began a relationship in 2004 and by 2006 were living together in a rented property. They were not married.

Mr Griffey purchased a farm in his sole name (including a mortgage) in 2007 for £660,000 where they both lived.They carried out substantial improvement and renovation works to the farm during their relationship. In 2010 Ms Dobson moved out of the farm as the relationship broke down. Mr Griffey put the farm on the market for sale but it did not sell and in 2016 he paid for further work to be carried out to the property and made a planning application for change of use. The property was later sold in 2017 for £967,500.

Ms Dobson made an Application to the Court for a share of the proceeds of sale of the farm. Her claim was made on the basis that before the property was purchased, there was an agreement between her and Mr Griffey as to their respective rights in relation to it and she had relied on that agreement to her detriment by carrying out some of the renovation and improvement works. She argued that alternatively, an agreement could be inferred from the course of dealing between them during their relationship. Mr Griffey denied that any such agreement existed between them and said that her contribution towards the renovation work was minimal andthat she had not made any contributions towards the mortgage or deposit.

The Judge highlighted that as the parties were not married the family law jurisdiction to allocate assets in accordance with the Matrimonial Causes Act 1973 did not apply and the case was to be governed by the Trusts of Land and Appointment of Trustees Act 1966.

The Judge accepted that Ms Dobson made a “real contribution” to the work on the farm and had done a “great deal of heavy and laborious work” which amounted to a “significant contribution to the renovations”. However, her claim was rejected by the Court on the basis that she had not carried out the work to receive financial gain or an interest in the property – she had done it as a commitment to the relationship and the farm was intended to be a home for life for both of them and any future children.

Ms Dobson was unable to establish a “common intention constructive trust” - both herself and Mr Griffey must have had a “common intention” that the property would be shared (this must be mutual) and that she had relied on this common intention in a way that caused her some detriment.

This case demonstrates how difficult it can be for an unmarried individual to prove an interest in a family home even where improvement/renovations have been carried out. It also emphasises that the principles of needs, compensation and sharing, as well as the overarching principle of fairness and the “yardstick of equality” that underpin the Matrimonial Causes Act 1973 are irrelevant under the Trusts of Land and Appointment of Trustees Act 1966 for cohabiting couples. This may come as an unpleasant surprise to many cohabiting couples who are simply unaware of their financial vulnerability.

It is possible to regularise many aspects of a relationship where couples are living together but not married by opting to enter into a Cohabitation Agreement. This can provide security and protection for cohabiting couples and children who are otherwise at the mercy of complex statutes and case law which may not provide them with a “fair” outcome upon separation.

At Ramsdens, our team of family law experts are here to discuss the implications of cohabitation, your rights, what to expect and cohabitation agreements in greater depth.

Please contact Claire Rutter Solicitor and Collaborative Lawyer in our Family Team if you would like more information about the issues raised in this article or any aspect of family law. For a free 30 minute appointment at our office in Easingwold or York telephone 01904 655442.