"Living-in-sin divorce law" (as the papers would have you believe it!)
We were one of the two firms of solicitors involved in the well publicised Court of Appeal decision in the case of FOWLER -V- BARRON (see the front page headlines of the Daily Express 24th April 2008, for example). We acted for Mr Barron and were naturally disappointed, like him, about the Court of Appeal's decision. The media obviously thought the Court of Appeal had gone a step too far on this occasion, by awarding half the property to a non-married partner who had never, on the face of it, paid a penny over 20 or more years towards the purchase of the property. That seems to be the gist of the headlines.
As usual in these types of media-hype reactions, the excitement of the newspapers and radio commentators overlooks the actual reasoning of the court (handed down 23rd April 2008). Whether you agree with it or not, the Court's approach to the case was hardly a departure from what went before, and no one should really be that surprised about what happened. It has long been the position that the Court is reluctant to budge from the default notion that joint owners of property own it equally. The Court always needs a good reason to move away from the notion of 50/50 when the title deeds effectively say 50/50.
To some extent, the Court's approach now - looking for the COMMON INTENTION shown by the evidence, rather than looking now at what might be ‘fair' - has a certain logical symmetry. It avoids the troublesome concept of the couples' respective shares going up and down like barometers from month to month and year to year, depending on what they have been doing and who has been paying what in respect of household expenses, and it avoids the courts having to do a complicated balancing audit (which to some extent they still have to do in many divorce breakdown cases). The Court says now: if you're unmarried and want the outcome to be different from 50/50, it's up to you to clarify the agreement clearly in black and white before the relationship hits the rocks.
Since the Court of Appeal has now confirmed in Fowler -v- Barron that it's all about ‘common intention' (according to the evidence), there is a simple way of avoiding Mr Barron's problem. If you want to have your partner on the title deeds, even though it is not expected that he or she pays anything towards the purchase or mortgage, get a DECLARATION OF TRUST document drawn up and signed. This will spell out to your partner and to the courts later, if need be, what exactly you both intend to happen if you split up or one or other dies. Unfortunately, our firm was not acting for Mr Barron at the relevant time the property was acquired. A lot of grief and expense could have been avoided.
Mr Barron trusted in a sense of fairness ultimately seeing him right, but regrettably that is not always how the law courts deal with things. In some scenarios, the court feels its hands are tied. The lesson is plain to see: don't assume anything! Get advice! Get the relevant documents drawn up properly! It's a good investment.
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