The recent judgment of the Court of Appeal in Capehorn v Harris  EWCA Civ 955 which clarifies the test for former partners to satisfy when claiming a beneficial interest in a former cohabitee’s solely owned property.
According to the Office of National Statistics, cohabiting couple families are on the increase; they are the fastest growing type of family in the UK and have seen a 29.7% increase between 2004 and 2014. It is estimated that there are now close to 6 million cohabiting households in the UK. Clearly this is an upward trend.
However, unlike married couples, cohabiting couples have no legal protection should their relationship sour and they part. Whilst this position has split the judiciary and academics alike, this is no doubt a blog topic for another day.
Many cohabitees therefore find themselves in some difficulty when their relationship ends and they have to move out of the property solely owned by the former partner. The question is, does the partner moving out have any rights over that property?
Unfortunately, I see and hear this question on a near daily basis. Helpfully, the Court of Appeal in Capehorn v Harris  EWCA Civ 955 has clarified the application of the two stage test where a party seeks to establish a beneficial interest, by way of common intention constructive trust, in a property which is solely owned by the former partner.
Splitting this legal jargon down, a beneficial interest means some form of share or financial interest in the property. A constructive trust arises by operation of law where it would be “unconscionable” or unfair for person ‘A’ who holds an asset, in this case a property, to deny another person ‘B’ a benefit in that asset. The common intention part refers to person A and B sharing an intention that B should have an interest in the asset, and then B acts to his detriment on the basis of that intention. To cite a typical cohabitee arrangement I have encountered, A buys a house in his own name but the intention is that B will also own it, and B then starts contributing to the mortgage or utility bills, but there is no paperwork to document this intention.