Graeme Fraser’s A–Z of Cohabitation
Published: 27/10/2023 10:15
Graeme Fraser needs no introduction in the cohabitation world. Here’s his A-Z of Cohabitation
A is for Agreement
A cohabitation agreement is a written, signed document, often signed as a deed in front of witnesses which deals with who owns (and owes) what at the time of the agreement and in what proportions; what financial arrangements have been made while the couple are living together, how property, assets and income should be divided if a couple splits up.
B is for Beneficial Interest
Beneficial interest denotes the equitable interest in property in favour of a beneficiary with equitable rights.
C is for Common Intention Constructive Trust
Common Intention Constructive Trusts arise when there was a common intention that both parties should have a beneficial interest and the claimant has acted to their detriment in the belief that by so acting they were acquiring a beneficial interest.
D is for Declaration of Trust
A Declaration of Trust that expressly states the proportions in which property is held is normally determinative of the respective beneficial interests in it unless there has been mistake, fraud or duress.
E is for Equitable Accounting
Equitable Accounting is a process whereby an adjustment is made in the ultimate division of the proceeds of sale of a property, following the ascertainment of the parties’ shares to enable fairness to be done between them.
F is for Financial Remedies
Cohabitants do not have access to the special statutory remedies available to married couples and civil partners to deal with the financial consequences of relationship breakdown.
G is for Guidance
Resolution’s Guidance Note on Cohabitation cases assists Resolution members and their conveyancing lawyer colleagues to manage cohabitation cases effectively, in accordance with the Resolution Code of Practice, and can be accessed by members here: Guidance Note: Cohabitation cases | Resolution
H is for Halsey
In Halsey v Milton Keynes General NHS Trust  EWCA Civ 576, the Court of Appeal indicated that an unreasonable refusal to attempt to resolve a matter through ADR can be penalised in costs.
I is for Inference and Imputation
In some cohabitation claims, a judicial discretion exists to consider that quantum of a fair share of a beneficial interest by reference to inference or by imputation.
J is for Jones v Kernott
In Jones v Kernott  UKSC 53, the Supreme Court confirmed that the starting point where a family home is bought in joint names is that the parties own the property as joint tenants in law and equity; this presumption can be rebutted by evidence through Inference that the parties’ Common Intention was different when the property was purchased or the parties later formed the Common Intention that their shares would change; that the court is permitted to carry out an Imputation exercise where Inference is not possible; and that many other factors other than financial contributions may enable the court to decide what shares were either intended or fair.
K is for Komu v Komu
Komu v Komu  4 WLR 26 was an ECJ decision applied in Magiera v Magiera  Fam 327 that a specific order for the sale of a property and a division of proceeds of sale is best dealt with by the courts in the jurisdiction in which the property is situated.
L is for Legal Ownership
Legal ownership is denoted by the person or persons registered on the proprietorship register at the Land Registry or, if unregistered, as specified in the conveyance
M is for Mortgage Contributions
Mortgage Contributions are regarded as cash contributions to the purchase of a property that help determine the beneficial interest, although this is subject to either an Agreement or Common Intention Constructive Trust
N is for Non-Compliance
Non-compliance with the CPR Practice Direction – Pre-action conduct and protocols in terms of failure to supply sufficient information; not acting within a reasonable timeframe; and unreasonably refusing to use ADR can result in Court sanctions including costs consequences.
O is for Occupation Rent
Where one party has vacated the property, and the other party remains in occupation, an occupation rent may potentially be payable while a sale is deferred, or deducted from the occupying party’s share of the proceeds of sale when the property is sold.
P is for Proprietary Estoppel
Proprietary Estoppel arises when the legal owner has led a claimant, either by their words or their conduct, to believe that the claimant has a beneficial interest in the property and as a consequence the claimant has acted to their detriment, making it unreasonable for the legal owner to insist that they have total beneficial ownership of the property.
Q is for Quantification
The Quantification of a Beneficial Interest once a Constructive Trust has been established is either by reference to an express Agreement or takes into account the whole course of dealing between the parties.
R is for Rectification
Rectification is the process by which a Declaration of Trust is set aside because of fraud, mistake, or undue influence.
S is for Stack v Dowden
Stack v Dowden  UKHL 17 is the House of Lords leading authority that a conveyance into joint names indicates both a legal and beneficial joint tenancy, unless and until the contrary is proved; the court must ascertain the parties' shared intentions, actual, inferred or imputed with respect to the property, in the light of their whole course of conduct in relation to it, and the burden is on the person seeking to show that the parties intended their beneficial interests to be different from their legal interests, and in what way.
T is for TOLATA
TOLATA, the Trusts of Land and Appointment of Trustees Act 1996 is the legislation that a cohabitant with a potential interest in property may use to make an application to the court if the legal owner of the property does not recognise their interest.
U is for Unjust Enrichment
Unjust enrichment is a common law remedy that one party has been unjustly enriched at the other party’s expense.
V is for Valuation
A court has the power under TOLATA to allow one party to buy out the other party’s share at market value by reference to the court-assessed Valuation as opposed to a Valuation of the property in the open market.
W is for Witness Evidence
Witness Evidence comprises witness statements that stand as evidence-in-chief and oral evidence permitted by the court of any matters not dealt with by the statement.
X is for the completion of the Declaration of Trust in the TR1
A transfer form, being a TR1 after 1998, is conclusive when the declaration of trust is signed, which involves placing an X in Box 10 for the Declaration of Trust section of the TR1.
Y is for Yeoman’s Row
Cobbe v Yeomans Row Management Ltd  EWCA Civ 1139 was considered by the Supreme Court in Guest and Another v Guest [2022 UKSC 27] concerning the proper basis for awarding remedies in cases of Proprietary Estoppel, in which it was held that the test of proportionality was the correct way of assessing a remedy although the detriment formed part of that test.
Z is for Zero Engagement
9 successive UK Governments have deployed a policy of Zero Engagement with introducing legislation since the Law Commission recommended cohabitation law reform in England and Wales in their July 2007 Report on cohabitation: The financial consequences of relationship breakdown is downloadable on the following link Microsoft Word - lc307.doc (lawcom.gov.uk)