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Experts' response to landmark House of Lords ruling
Times Online
26 April 2007
Family law experts respond to today's landmark House of Lords ruling
Experts' response
William Selby Lowndes, Darbys Solicitors:
This is a clear warning to all cohabiting couples to enter into a trust deed or co-habitation agreement at the very beginning. This may be very difficult advice for the rose-tinted love struck couple who think nothing will ever go wrong, but by having one they can potentially save thousands of pounds and huge amounts of grief and bitterness if the relationship breaks down.
Andrew Francis, Serle Court chambers:
The lesson to be learned is to ensure that short of marriage and civil partnership, the parties enter into written agreements declaring their interests in the property, whether at the outset or during the relationship.
James Freeman, Speechly Bircham:
The House of Lords have taken the opportunity in this case to point out the elephant traps into which the unwary co-purchaser of property - especially the unmarried one - may tumble. Unless the shares in which the beneficial interest in the property are properly, expressly defined, a party may well struggle to show that they are anything other than 50 per cent each. On its facts, the case of Barry Stack and Dehra Dowden is one of those rare exceptions, principally because of the largely separate nature of their financial arrangements and Ms Dowden's much weightier financial contribution to the purchase price.
Catherine Hallam, Burges-Salmon:
In this case the court decided this on the basis of background evidence about how they had lived their lives, rather than what it said on the ownership documents. This is particular problem for people who bought properties in joint names before 1 April 1998. Since then, the Land Registry forms provide greater clarity. For properties bought earlier than this in joint names where there is no clear declaration of the percentages in which the property is owned, one member of the couple can argue for an unequal division.
The safest course of action for all people who buy a property together is to have a clear written agreement at the time. For those who bought property before April 1998 they may still be able to enter into an agreement now to avoid arguments in future.
Shona Alexander, Forsters:
This decision does not revolutionise the way that cohabitation cases should be resolved, but really never could have done, as the Law Commission’s final report and proposals on the issue are not due until August and may advise a significant change in this area - introducing a divorce-style award for former cohabitees.
Until then, these disputes will continue to be resolved using the current case law and consideration of direct financial contributions, rather than by discretion.
Jeremy Abraham, Russell Jones & Walker:
It is to be hoped that the Law Commission, who are to recommend changes in the law relating to cohabiting couples later this year, will come forward with a code that will lead us out of the regime where we say "there's the cake, now what's the recipe?