Monday, 11 June 2012

The Infinite Variations of Cohabital Bliss

The recent High Court case of Aspden v Elvy [2012] EWHC 1387 (Ch) has given some additional thought to the seminal decision of the Supreme Court in Jones v Kernott [2011] 3 WLR 1121.  Both cases dealt with cohabiting couples where a dispute as to the ownership of property has arisen.  Where Jones dealt with a property that was purchased in joint names, Aspden dealt with a property that was held in the sole name of Ms Elvy.  Despite this distinction, the judge in Aspden found that, just as in Jones, the common intention of the parties had changed since the initial transfer and made a decision that it considered to be fair taking into account the “whole course of dealings between the parties”.

The property in question was a barn that had been transferred from Mr Aspden to Ms Elvy in 2006.  Despite Mr Aspden’s evidence to the contrary, the judge held that at the time of the transfer barn vested entirely in Ms Elvy.  Over the course of the next three years, Mr Aspden lived on the property in a caravan and contributed a considerable amount of money (£65,000 to £70,000) and physical efforts (with his JCB) into helping Ms Elvy convert the barn.  His asserted that Ms Elvy understood that these contributions were made on the basis that he was gaining an interest in the property and that they would eventually live there together as a family.  Ms Elvy’s case was that there was no intention to live in the property together, that his financial contributions were gifts and his physical contributions so minimal as to be disregarded.

The judge decided that Mr Aspden had gained an interest in the barn and that this should be set at 25%.  The Barn had recently been valued at £400,000.  The judge noted that this figure was “somewhat arbitrary but it is the best I can do with the available material.”
Hard cases make bad law?  There was some suggestion that the decision in Jones did not go far enough in providing clarification on the application of the law in such a case.  There are still calls for parliament to step in and introduce legislation setting out the rights of cohabiting couples. Even if legislation is forthcoming, this will not solve all the problems that arise in cases such as Jones and Aspden.

If one is taking into account the whole course of dealings between the parties then it is difficult to see how one case might relate to another in all but the barest of facts.  The judge in Aspden starts his judgement by saying that “On any view the facts are unusual.”   He went on to consider the various facts that were in dispute between the parties with reference only to limited supporting documentary evidence dating back nearly 30 years.  It was only after he had made his findings that he could consider what a fair result was.  Where such disputes as to facts arise then additional clarification, whether through case law or legislation, will not be of much assistance until those facts have been resolved to the best of the Courts ability and will therefore not avoid a detailed analysis of the case.

We can expect to see more of such cases coming before the Courts.  Not because the law is unclear but because so many couples are cohabiting in preference to marriage.  People are free to make decisions about how they organise their lives and no doubt one couple’s idea of cohabital bliss will differ from that of their neighbours'.  Throw into the mix any number of factors, that may affect the status and value of any property, from children to income, benefits and DIY ability, and “the whole course of dealings between the parties” becomes something as unique to a relationship as fingerprints are to an individual.

The answer is not in further judicial or legislative clarification but in encouraging couples to consider their position early on in their cohabitation and again at any point when those intentions change, and to record it.  This is the best way to ensure that extensive arguments as to the parties’ intentions are avoided.  Having a serious conversation about who will own what in respect of property may not be an attractive prospect to couples contemplating moving in together.  As Ms Elvy said in her evidence “You don’t do that when you are getting on well”.  Well, the case law suggests that such conversations only get more difficult once the relationship has started to deteriorate by which time it may be too late!

No comments:

Post a Comment