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Southwell v Blackburn - supporting the case for cohabitation agreements and declarations of trust

Erin Hunt

In Southwell v Blackburn [2014] EWCA Civ 1347 the Court of Appeal dismissed an appeal against a successful proprietary estoppel claim, where a cohabitee was awarded £28,500 representing a slice of equity in the property the couple had cohabited.

The case raises significant concerns about the potential to lose assets and equity to former partners following relationship breakdown; cohabitees may be awarded a share in property even when it was in their partner's sole name and even if they have made no significant contributions to the purchase price or outgoings.

In Southwell v Blackburn [2014] EWCA Civ 1347 the parties has met in 2000. D was divorced with two children and worked as a teaching assistant living in social housing in Manchester. A worked and lived in Portsmouth.

In 2002, A purchased a property in Worcestershire in his sole name and the couple began living together there. D had invested in her property in Manchester but did not contribute to the purchase price of the property in Worcestershire.

When the relationship broke down in 2009, A changed the locks at the property and D and her children were effectively homeless.

D applied to the court for an equal share of the property and said that the couple had intended to buy the property together.The legal documents did not show this but D stated that was because it had been difficult for her at the time to travel from Manchester to Worcestershire to sign as joint owner but it was understood by both parties that the property would later be transferred into joint names. A denied this and maintained that the property was always intended to be purchased in his sole name. 

It was decided by the judge that

  • The decision to purchase the house was made together with the intention of creating a home and to live effectively as husband and wife
  • D was persuaded to leave her job and secure social accommodation which she had invested significant funds into, to move her family, relinquishing her independence and would not have done so, save for A's assurances.
  • Though discussions were not specific as to ownership of the home, the focus was on A's commitment to D and the provision of secure accommodation. From A's assurances, D had expectations of security in terms of property and income akin to that of a wife

Though the judge rejected D's claim as beneficiary of a constructive trust, he upheld her alternative claim which was an enforceable equity by way of proprietary estoppel. The judge valued the equity at £28,500 and ordered A to transfer that amount to D.

A appealed to the Court of Appeal and lost the Appeal.

It is important to highlight that the case was lost on the claim of a constructive trust but proprietary estoppel was shown. It is not unusual to see clients make promises to their partners, as is the nature of being in a committed relationship and planning a life together.

What we ask clients to consider, quite separate from their loving relationship and from their personal affairs, when considering their property and financial affairs- if circumstances change or in the event of a relationship breakdown, how would you like to deal with everything. 

By entering into a cohabitation agreement or declaration of trust you give each party clarity about your intentions and respective interests in property should the relationship break down in the future. A cohabitation agreement can also afford you a great deal of pragmatism for dealing with your finances and how they can be effectively managed during your relationship as well as in circumstances of relationship breakdown.

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