The Law of Trust and Equitable Obligations

In conclusion, the point made by Mustill L. J is correct in assertion that there is no clarity in this area of law, since the issue of the 'Family Home' involves a number of complexities, with regard to cohabitants. Cohabitants have been given legal rights in many jurisdictions. 20 Thus England again lags behind other jurisdictions. One would suggest that the MCA 197321 should be extended to cohabitees, but this approach would not help in cases of two friends buying a house and living together, or co-habiting same-sex couples.

Furthermore, there is the possibility to use pre-nuptial agreements or the distributions of property in the family have. 22 But the document fails to deal with the issue of same-sex couples. The Law Commission paper23 covers not only unmarried couples, but also, same sex-couples, friends, relatives and others who may be living together. The paper recommends that those entering into home shares should seek legal advice and the courts should adopt a flexible attitude towards the types of contributions that will lead to a share in the beneficial ownership.

But while accepting the unsatisfactory state of law, the Law Commission does not think it is possible to devise a statutory scheme for ascertaining and quantifying beneficial interest across the range of home sharing situations. This in contrast, as the Law Commission accepts, to the approach in a number of other jurisdictions, and with ideas put forward in a paper published in 2002,24 it examines a wide range of issues relating to cohabiting people either same or opposite-sex couples.

The Law Society believes that the current law affecting cohabitants fails to provide them with adequate protection, particularly on relationship breakdowns, and therefore should be reformed. Hence, any reform of the law should provide both same-sex and opposite-sex cohabitants with protection after a set time during which the relationship has continued or if the parties had or adopted a child. More so, same-sex cohabitants should be entitled to register their relationship; acquiring the same rights and responsibilities towards their parties as would be acquired on marriage and divorce.

The law relating to tenancies should be modified to place opposite-sex and same-sex cohabitants in the same position, with regards transfer of and succession to tenancies. Cohabitant's contracts should have the same evidential value as pre-nuptial contracts. Furthermore, same-sex cohabitants should be entitled to make application for provisions on death under the Inheritance Act 197525, according to the same intention as apply to opposite-sex cohabitants.

An attempt to provide solution in this area was contained in the Civil Partnership Bill,26 which introduced the concept of the civil partnership under which two cohabitants would be able to sign and register a declaration of civil partnership. This registration would be open to same-sex and opposite-sex cohabitants, and would also be open to couples, whether they were involved in a sexual relationship or not. After the declaration, the parties would have similar rights and obligations to married couples.

The bill also sets out provisions relating to 'property agreements' made between the partners under which the parties would agree their respective entitlement to the property and this would be conclusive evidence of the matters covered by it. However, the bill fails to be law. Section 1(3) (2)27 may prove useful for same-sex couples as in the previous act;28 the valuable consideration included marriage. Under LRA 2002, marriage is no longer requirement, proving beneficial to same-sex couples. What is paramount is the Government has announced it will publish a report and bill extending to rights of same-sex couples who co-habit.

Thus, gay and lesbian relationship will be covered. However, it is clear that the provisions will not be extended to opposite-sex couples. 


Textbooks – Jill E. Martin. Modern Equity. 16th Ed. Sweet & Maxwell. 2001 Paul Todd and Sarah Lowrie. Textbook on Trusts. 5th Ed. Blackstone's. 2000 Robert Pearce and John Stevens. The Law of Trust and Equitable Obligations. 3rd Ed. Butterworths. 2002. Judith-Anne Mackenzie & Mary Philips. Textbook on Land Law. 9th edition. Oxford 2002. A. J. Oakley. The Modern Law of Trust. 7th Ed. Sweet & Maxwell. 1999. Meryl Thomas. Blackstone's Statute on Property Law. 10th edition. 2003-2004