Mcgregor

The Property (Rights of Spouses) Act is a powerful piece of legislation, which has served to ensure that both married and unmarried couples (in certain circumstances) can apply to the courts to determine their interest in property registered jointly or in the name of one party.

The act deals with division of property owned by married couples or by a single man or single woman who cohabits for at least five years as if they were legally married. It creates a presumption that each party has a 50 per cent share in the family home, whether it is owned jointly or by one of the parties.

However, where a single man and a single woman have been cohabiting for a period less than five years, or one of the parties was not single while the couple cohabited (even for a period in excess of five years), their situation will not be governed by the act.

In England, common law unions are not recognised as creating rights equivalent to those in marriages. England has no statute similar to our act. Therefore, cases decided in English courts may assist to demonstrate the manner in which our courts are likely to determine cases not covered by the act.

One case

The House of Lords in February this year heard the case of Stack v Dowden. Stack and Dowden were an unmarried couple who were together for 27 years. They first cohabited in 1983 in a house which Dowden had acquired in her sole name and was solely responsible for paying the mortgage. The couple used their joint resources to expand the house before it was eventually sold.

The couple had four children and jointly acquired a new home. However, they had no other assets jointly. When they separated, Stack applied to the courts for a 50 per cent share in the property. He succeeded at first, but the Court of Appeal reduced his share to 35 per cent. He appealed to the House of Lords, which upheld the Court of Appeal's decision.

Some of the comments by the law lords in arriving at this decision should be noted:

To determine the parties' share in the property, the court must determine the common intention of the parties based on their discussions and actions.

When property is registered in joint names, the basic presumption is that each party has an interest in the property.

It is for the party who contends that the other party has no share to prove that this is so.

The parties' intention is to be gleaned from financial contribution as wellas other factors at the time of acquisition; reasons for joint acquisition; nature of parties' relationship; how the parties arranged their finances.

The court found that Dowden contributed far more to the acquisition of the first home than Stack and paid for most of the household expenditure, which meant that Stack's share was less than Dowden's.

This case shows that parties are still able to apply to the court for a determination of their interest in property where their case may not be covered by the Property (Rights of Spouses) Act.