Antonia Halker: http://www.5pumpcourt.com/barristers/antoniahalker

In the 21st Century it is very common for long term unmarried partners to cohabit, with or without children. Inevitably and sadly some of these relationships come to an end. There is often a false assumption that, on the breakdown of a relationship between non-married cohabitees, their legal rights in respect of any property they own are the same as if they had been married. In fact there are huge differences. Whilst the division of property of married partners falls into the realm of Family Law, that of non-married partners remains a Civil Law matter and is dealt with under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”). This note provides a brief outline of how the law in relation to the property of non-married partners operates.

When considering parties’ beneficial interests in a property, the starting point is that “equity follows the law”. This means that beneficial interests reflect the legal interests in the property.  Where the legal title to the property is held in joint names, the presumption is that the beneficial ownership is held jointly in equal shares, unless and until the contrary is proved. Where the legal title is held by one partner only, the presumption is that they own the entire beneficial interest in the property.

The leading cases in this area is Stack v Dowden [2007] UKHL 17 (“Stack”), which established key principles for determining parties’ respective beneficial interests as follows:

a.       A conveyance into joint names will result in a legal and beneficial joint tenancy unless the contrary is shown.

b.      The burden of proof is on the owner seeking to show that they intended to hold their beneficial interests as tenants in common in unequal shares.

c.       The Court must ascertain the parties’ shared intentions in the context of the whole course of their conduct relating to the property. Factors to be considered include:

                                                   i.      Advice or discussions at the time of the transfer which cast light on the parties’ intentions at that time;

                                                 ii.      The reasons why the home was acquired in joint names;

                                                iii.      The purpose for which the home was acquired;

                                               iv.      The nature of the parties’ relationship;

                                                 v.      Whether they had children for whom they had responsibility to provide a home;

                                               vi.      How the purchase was financed;

                                              vii.      How the parties arranged their finances, whether separately, together, or both; and

                                            viii.      How they discharged the outgoings on the property and their other household expenses.

Stack was explored further in the more recent case of Jones v Kernott [2011] UKSC 53 para 25 (“Jones”) in which it was held that, where a property is purchased in joint names for occupation by an unmarried couple, there is no presumption of a resulting trust arising from their having contributed to the purchase in unequal shares. The presumption is that the parties intended a joint tenancy both in law and equity. This presumption can only be rebutted by evidence of a contrary common intention.

The leading judgment of Lord Walker and Lady Hale in Jones at paragraph 51 summarises the principles applicable in cases where a family home is bought in joint names of a cohabiting couple who are both responsible for any mortgage, but without an express declaration of their beneficial interests as follows:

“(1)                The starting point is that equity follows the law and they are joint tenants both in law and in equity

(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.

(3) Their common intention is to be deduced objectively from their conduct: “the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party

(4) In those cases where it is clear that either (a) the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence of inference what their actual intention was as to the shares in which they would own the property, “the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property

(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were intended (as in case (3)) or fair (as in case (4)).”

The case law above shows that, unlike married couples, the starting point is not that non-married partners own the property in 50% shares. The starting point is the legal ownership of the property and the assumption that the beneficial ownership follows that. The following 2 examples show how the law operates in a practical context

A and B have lived together for 15 years with their 2 children. Their family home is registered solely in the name of A. The home was purchased using savings from both A and B as the deposit and by way of a mortgage in A’s name. A and B have both contributed to the mortgage, household bills and living expenses over the years. A and B separate. A asserts that the beneficial interest in the home is owned by her alone. B claims to have a 50% interest. The burden of proof rests on B to show that the common intention of A and B was to own the property 50/50. B points to the fact that this was to be a family home for A and B and their children. B states that, when the parties bought the property, it was registered solely in A’s name, as B had a poor credit history and could not obtain a mortgage. B states that the parties bought the property intending to live in it together indefinitely as a family and did not foresee splitting up. B also points to his financial contribution over the years. The Court accepts B’s evidence and finds that there was a common intention that the property be owned 50/50. B has satisfied the burden of proof of showing that the beneficial ownership is different to the legal ownership.

C and D purchased a property jointly in 2008 as a family home. Each sold their existing property to fund the joint purchase. C contributed 75% of the purchase price and D 25%, as D’s existing property had been worth much less than C’s. C paid the majority of the mortgage payments, whilst D’s income was instead used for joint expenditure on holidays, furniture and home improvements. On separation in 2018 C asserts that he owns at least 75% of the beneficial interest in the property, as he contributed 75% of the purchase price and paid at least 75% of the mortgage. D disputes this, claiming 50/50 ownership. As the property is jointly owned, the burden of proof rests on D to show that the common intention as to ownership was something other than 50/50. The Court finds that financial contribution to the property is not the key factor in determining the parties’ beneficial interests. The correct approach is to look at the common intention of the parties. The Court notes that, whilst C contributed more to the mortgage, C had the benefit of D’s income being used for other joint expenditure. The Court finds C cannot discharge the burden of showing the parties intended anything other than 50/50 ownership.

These are just 2 examples and each case will turn on its own facts. It is important that parties to such a dispute should be wary of starting to unpick the finances in relation to a property on the breakdown of a relationship. Instead they should look back to the purchase of the property and consider what they both intended at that point in time. The simple way to avoid this problem ever arising would be for non-married cohabitees to enter into an express declaration of trust in writing clearly setting out each party’s share.

Antonia Halker

30 November 2018

Antonia Halker regularly advises and represents parties in TOLATA disputes and proceedings and other property related matters.

How can arbitration help you if your data has been illegally stolen?

Kemi Ojutiku says that arbitration can offer a cheaper, more effective remedy than going to court to protect your rights.

None of us has been able to escape the recent news and publicity surrounding the ‘Data grab’, as it has been dubbed, whereby personal data from reportedly millions of Facebook users was harvested by Cambridge Analytica, a British political consulting company, without their knowledge or consent and used to allegedly help political campaigns.

To some analysts this is the tip of the iceberg and, as we all know, the largest part of an iceberg is the part that is submerged. If this is true then there are more revelations to come.

The fact remains that personal data is given out by all of us, most of the time unwittingly, on a daily basis. Some examples of this are bracelets or apps that monitor our daily exercise habits or even sleep patterns, maps that plot our routes, concerts, conferences and seminars that we sign up to and even loyalty apps/cards for our coffee purchases and other shopping.  

This data, we now know, may be used for reasons that we have not consented to in a number of areas. Some harmless, others not so but the point is that this is our data and it should be responsibly handled.


How is data regulated? 

In the United Kingdom the main legislation under which data protection is regulated is the Data Protection Act 1998. From 25th May 2018 the General Data Protection Regulation, which was ratified by the European Union in April 2016, will be implemented into law and organisations will be expected to be fully compliant on this date. 

This is a uniform piece of legislation for all EU states. It remains to be seen whether this will remain following BREXIT; however, data protection will continue to be regulated in some shape or form.  There is similar legislation in the United States.

Possible remedies for anyone who has had their data procured and used for a purpose without their consent range from a legal action for damages for a breach of contract, a breach of privacy to a breach of statutory duty etc. Pursuing such an action through the courts is likely to cost a significant amount of time and money with cases often lasting many months, if not years.  

A faster and effective way by which this can be pursued is by way of Arbitration.

What is Arbitration? 

This is a non-judicial process for the settlement of disputes where an independent arbitrator makes a binding decision in respect of a dispute. Although just as binding, the process is less formal than the court procedure with the arbitrator’s role being similar to that of a judge.

The procedure is much faster and cheaper than formal legal proceedings and the outcome remains confidential. 

How does this apply to a data protection breach? In order for a matter to proceed to arbitration the parties are required to agree to arbitrate the dispute or there must be an arbitration clause in the contract that exists between the parties.

The aggrieved party will need to identify that data of which they are the subject has been used for a purpose that they did not consent to. This is ascertainable by a simple enquiry from the relevant organisation. It was reported that Mark Zuckerberg will apologise to those affected although it is unclear what form and when, if at all, this will take place and whether there will be an acknowledgement to individuals.

Arbitrations are often conducted on the papers without the need for an oral hearing(s). This enables the dispute to be resolved upon the submission of all of the relevant papers requested by the arbitrator who will, in turn, send out the decision, or Award, as it is called, in writing.

Personal data is akin to personal property and should be protected and looked after in the same way as precious possessions are guarded.

Kemi Ojutiku


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