The main contention of this essay supports the notion that the law governing the

breakdown of unmarried cohabiting relationships is uncertain, unfair, and unchanging. Due

to the absence of cohabitation-related laws, courts rely on CICT to justify if both parties

have a common intention in a property. However, harsh rulings from cases like Lloyds Banks

plc v Rosset1 shed light on the challenges faced by claimants when attempting to prove

common intention through indirect contribution. Consequently, Lady Hale criticised Rosset

and amended the principles from CICT, concluding that non-monetary contributions are also

important for determining common intention. However, the inconsistent claims made by

Lady Hale, who adopted Rosset's approach in prior single-name cases, call into question her

claim. Additionally, it will examine the drawbacks and the advantages of applying joint

ownership principles to single-name cases. Moreover, with assistance from cases like Burns

v Burns2 and Cooke v Head,3 it will illustrate how the current legal framework discriminates

against women. This is refuted by the way that these decisions would have been altered

post Stack v Dowden.4 Finally, it will explore the reform proposal by the Law Commission

and the Parliament's failure to execute it, which has inevitably impacted cohabitants

unjustly.

In sole–ownership cases, “only one party has a legal interest in the property the

presumption is that the beneficial interest is vested only in that individual”. 5 Therefore,

courts would need to rely on “patchworks” of judgments or approaches from other cases

depending on the circumstance.6 Hence, making it harder for claimants to establish a

1
Lloyds Bank plc v Rosset [1990] UKHL 14
2
Burns v Burns [1984] Ch 317
3
Cooke v Head [1972] 1 WLR 518
4
Stack v Dowden [2007] UKHL 17
5
Georgina MC, “Unmarried Cohabitation and the Constructive Trust: An Exercise in Flawed Equality” (thesis,
Lancaster University 2018)
6
House of Commons, ‘The Rights of Cohabiting Partners’ (Women and Equalities Committee, House of Com-
mons 2022)
beneficial interest compared to joint ownership since direct financial contributions would be

able to satisfy this element. This was evident in the case of Lloyds Bank Plc v Rosset7 wherein

the claimant failed to establish common intention or beneficial interest as she didn’t

contribute directly post or before acquisition. Rosset's principles remained to be the “final

word” on sole ownership cases for relationship breakdown for “17 years”.8

However, Lady Hale does not define on what grounds the “law moved on” as she fails to cite

“directly any cases that support her claim”. This is “poor methodology” 9 due to the lack of

supported doctrine statements can lead to a risk of subconscious bias and doctrinal error, 10

which are present from her judgment in Stack v Dowden. She continues to adopt the

principles from Rosset in several other single-name cases. In the case of Drake v Whipp,11

the Court of Appeal “held that the parties to have had a common understanding that the

property was to be shared beneficially by them both” which was justified through the

Rosset approach and a similar conclusion was also found in Lowson v Coombes.12 Illustrating

how Lady Hale’s statements are contradictory, as the law hasn’t “moved on” 13 from Rosset if

the court would continue to explicitly cite Rosset for other single-name cases. This is

confusing for courts as there is no evident approach to rely on when evaluating single-name

cases through CICT. Therefore, leading to a “potentially productive of injustice”14 which

reinforces the fact that the current legal landscape regarding cohabitation is “unfair”.

7
Lloyds Bank plc v Rosset [1990] UKHL 14
8
Matthew M, ‘Single Name Family Home Constructive Trusts: Is Lloyds Bank v Rosset Still Good Law?’ (2018)
351 Radcliffe Chambers
9
Ibid [356]
10
William B, Adam. S. C. and Anup M, “Making Doctrinal Work More Rigorous: Lessons from Systematic
Reviews” [2017] 84 University of Chicago Law Review 37, 43–44
11
Drake v Whipp [1996] 1 F.L.R
12
Lowson v Coombes [1999] Ch. 373
13
Stack v Dowden [2007] UKHL 17 [60]; Abbott v Abbott [2007] UKPC 53 [2] and [19]
14
Ibid [26]
Moreover, there has been a shift over the years post Jones v Kernott,15 courts would apply

the principles from joint ownership to sole ownership cases. The ability to bind third parties

is the crucial element of property law, which can be done through both parties in joint

ownership as they are automatically entitled to beneficial interest and would need to

quantify the shares.16 This draws attention to sole ownership, as though non-owners would

be entitled to equitable rights, they don’t share the same legal right as owners, implying

that non-owners won’t be able to sell mortgages or sue third parties. Signifying how sole

and joint ownerships are “two very different enterprises even if the aim in both contexts is

to discern the party’s common intention”.17 Therefore, there are fundamental differences in

the conceptual bias and analytical approaches used in single and joint cases, resulting in the

inability to assume that the analytical approach used in a joint case should apply equally to a

single-name case.

Furthermore, in circumstances involving sole ownership, courts would need the claimant to

establish a detrimental reliance and beneficial interest through direct financial

contributions. This is problematic as they are targeting the “financially weaker partner”

which are typically women who usually “reduce or give up paid work to undertake

childcare”.18 Therefore, they lack the resources to make a direct monetary contribution post

or prior acquisition, which the current “property law values”, 19 thereby making it harder for

them to garner evidence when establishing beneficial interest. Hence, courts have

15
Jones v Kernott [2011] UKSC 53
16
Matthew M, ‘Single Name Family Home Constructive Trusts: Is Lloyds Bank v Rosset Still Good Law ?’ (2018)
351 Radcliffe Chambers
17
Ibid [363]
18
House of Commons, ‘The Rights of Cohabiting Partners’ (Women and Equalities Committee, House of Com-
mons 2022)
19
Ibid [14]
continuously neglected indirect contributions (i.e., childcare, small contributions post or

prior acquisition, etc.).

This is demonstrated in Burns v Burns,20 wherein the court held that the claimant was

unable to establish a beneficial interest as no direct financial contribution was made,

despite having “worked just as hard as the man... maintaining the family in the sense of

keeping the house, giving birth to and looking after and helping to bring up the children”. 21

Reinforcing how Burns’ sole focus on direct financial contribution “prejudices economically

weaker cohabitants and has led to allegations of inherent gender bias against female

partners”,22 illuminating how courts have conformed to societal norms where traditionally

they view men to be the “breadwinner” 23 in a relationship while women take on the

nurturing role. Lord Justice Fox disregarded the claimant's contribution to be direct as it was

“domestic duties” and had ‘no indication at all that they thereby intended to alter the

existing property rights of either of them’ further upholds this. 24 Such misogynistic beliefs

that have been adopted in courts’ judgments highlight the gender bias women suffer from

through CICT. As a result, it led the claimant to walk “away from a 20-year relationship with

nothing”,25 illuminating how her and many other women’s contributions to relationships

remained “worthless” in the eyes of the court. 26 Therefore, highlighting how the current

“legal landscape” has been discriminatory towards women in cohabiting relationships.

20
Burns v Burns [1984] Ch 317
21
Ibid [345]
22
Georgina MC, “Unmarried Cohabitation and the Constructive Trust: An Exercise in Flawed Equality” (thesis,
Lancaster University 2018)
23
Craig R, Proprietary Remedies in Context (Oxford: Hart Publishing, 2002), 231.
24
Burns v Burns [1984] Ch 317
25
Sarah G, ‘Back to the Bad Old Days?’ (2008) 158 New Law Journal 174, 179.
26
Georgina MC, “Unmarried Cohabitation and the Constructive Trust: An Exercise in Flawed Equality” (thesis,
Lancaster University 2018)
 27
Complementary to this, Cooke v Head further highlights the gender bias women face

through CICT. The claimant had established beneficial interest through an “unusual amount

of work for a woman”. The use of “unusual” reinforces the misogynistic stereotypes the

court has conformed to, suggesting how her contribution was more manly as “the plaintiff

did much more than most women would do”. 28 Illuminating how other “feminine”29

contributions are characterised to be “the most natural thing in the world for any wife” to

perform thereby invalidating their input to be used as evidence for beneficial interest. 30

However, since both cases were taken place before Stack v Dowden, the final ruling would

have been rendered differently. As discussed before, in Stack, Lady Hale altered the CICT

approach by suggesting how courts must adapt to social and economic changes, 31 hence this

new judgment emphasises the importance of indirect contribution when inferring common

intention. Implying how courts have evolved post-Burns v Burns and are expanding their

judgments to prevent women or the “financially weaker partner” 32 from being targeted

through CICT.

Furthermore, the population of unmarried cohabiting couples have increased significantly

with “3.6 million in comparison to 1.5 million in 1996”. Despite this, the current legislation

does not reflect this, as cohabitation has no “legal” definition due to the lack of statutes or

legislation surrounding cohabiting couples.33 Consequently, it has caused a plethora of

problems for cohabitants as they are not legally recognised by the law. Prompting courts to

27
Cooke v Head [1972] 1 WLR 518
28
Ibid [518]
29
Georgina MC, “Unmarried Cohabitation and the Constructive Trust: An Exercise in Flawed Equality” (thesis,
Lancaster University 2018)
30
Lloyds Bank v Rosset [1990] 1 AC 107, 131.
31
Yee CL, “Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones V Kernott –
Should the Resulting Trusts Be Preferred?” (2019) 6 IALS Student Law Review
32
House of Commons, ‘The Rights of Cohabiting Partners’ (Women and Equalities Committee, House of Com-
mons 2022)
33
Ibid [1]
apply principles from CICT. However, English courts have recognised that the “solutions

offered by the common law as inadequate”. 34 This is supported by the traditional theories

that continue to guide this area of English law are unable to provide “the norm needed to

conform with our ideals of social justice”. 35 Thereby, highlighting the need for reform in the

judiciary or in the legislature which can lead to a more just approach. In addition to this, the

Law Commission recognises the conclusion reached in the BSA survey, wherein “married

couple and unmarried couple should have the same legal rights from day one of living

together”.36 Consequently, the law commission suggested a “financial relief” programme,

which seeks “to ensure that the pluses and minuses of the relationship were fairly shared

between the couple” and then the magnitude of any retained benefit or ongoing economic

loss would determine the value of any award.37 This “relief” is loosely based on the

principles of CICT. This a much more reasonable and fairer than the orthodox approach, as

its sole focus is on awarding compensation for contribution than seeking evidence to

establish common intention.

In contrast, Baroness Deech criticises the decision for reform, arguing how “cohabitation is

growing in popularity, maybe because it avoids the heavy financial penalties of a failed

marriage and divorce”.38 To counteract this, there have been a plethora of cases discussed

before, on how CICT is inadequate and has failed cohabitants to receive a fairer ruling due

to harsh procedures from common intention. Therefore, highlights how the Baroness has

failed to address the “broad range of cohabiting relationships, exhibiting different degrees

34
Craig R, “The Conceptual Structure of Restitution for Wrongs” (2007) 66 The Cambridge Law Journal 172
35
Ibid [20]
36
Anne B. and Grace J, “Regulating Marriage and Cohabitation in 21st Century Britain” (2004) 67 Modern Law
Review 143
37
Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307)
38
HL Deb 15 March 2019, vol 796, col 1264
of commitment and interdependence”.39 Signifying, how the Parliament shouldn’t disregard

the need for reform, just because some cohabitants “wish to be left alone by the law” 40

doesn’t mean they should neglect the rest of the cohabitant population. This is further

reinstated by the Law Commissions' previous statements on how “the current law offers a

degree of flexibility which is positively desirable in that it can respond with some

sophistication to different factual circumstances and different personal relationships”. This

is a frustrating approach as it’s because of the willingness of courts to take an inventive

approach to find intention when none exists, this was evident in Lady Hale’s approach to

CICT in Stack v Dowden.

However, despite vocal support for cohabitation rights from the public, the Parliament did

not proceed to implement the reform, due to the political tension regarding cohabitation.

Historically, cohabitation was a taboo topic, the Conservative party views it as an “unnatural

arrangement”.41 This is further supported by the Law Commission stating how support from

the Mission and Public Affairs Council of the Church of England would be “jeopardised” as

“its perceived threat in some quarters to the institution of marriage”. 42 Therefore, highlights

how the Parliament still considers cohabiting couples to be inferior to married couples and

seeks to ensure that “marriage retains its gold standard status and that the rights and

remedies afforded to cohabitants are in some sense ‘lesser’ than those enjoyed by

spouses”.43 This serves to emphasise how the "legal landscape" surrounding cohabitants is

currently "unchanging" and the hope for reform is "uncertain," thereby having a detrimental

39
Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307)
40
HL Deb 15 March 2019, vol 796, col 1264
41
Georgina MC, “Unmarried Cohabitation and the Constructive Trust: An Exercise in Flawed Equality” (thesis,
Lancaster University 2018)
42
Jo M, Fran W., and Enid M, “Reforming Family Law – the Case of Cohabitation: ‘Things May Not Work out as
You Expect’” (2012) 34 Journal of Social Welfare and Family Law 167
43
Ibid [68]
effect on cohabiting couples because they are not protected by the law and will continue to

suffer inconveniences in the future upon relationship breakdown

Overall, this essay has argued in favour of the statement that the current legislation

surrounding cohabitation is inadequate. This is demonstrated by the court's inability to find

a consistent approach when evaluating sole-ownership cases. Hence, signifying how

cohabitants will inevitably receive an unjust ruling. Further, CICT has also targeted women in

a discriminatory manner, invalidating their input as evidence to direct financial contribution,

reinforcing how the current legal framework remains “unfair” to cohabitants. However, this

is challenged, by the court's attempt to apply joint-ownership principles to single-name

cases, allowing them to make a more just and informed decision for cohabitants. This is

refuted by Parliament’s constant attempt to legally disregard cohabitants and failure to

enact reform to establish the right to cohabitation. Illustrating, that it's not the court’s sole

responsibility to find solutions for cohabitants as Parliament should take responsibility to aid

them as well. Due to their negligence for the lack of regulations, courts will continue to use

CICT when deciding on cohabitant couples. Therefore, the current legal landscape will

remain “unfair, unchanging, uncertain” to cohabitants.