High Court decision highlights cohabitation risks

A recently reported judgment from the High Court, Kirishani v George Major, provides another example of the different way the law operates in England and Wales for cohabiting couples compared with their married counterparts - crucially the lack of financial support on relationship breakdown (regardless of the length of relationship or decisions made during it) and the lack of automatic protection where one member of a cohabiting couple dies intestate.  And yet, in other ways (often to their detriment) they are treated the same – for example when it comes to state benefits and in this recent example when there was a presumption that, because of their relationship, they did not intend to create a legal contract.

Ms Kirishani could not recoup the payments she said Mr Major owed her in respect of rent and holiday expenses because she could not rebut the presumption that in the context of domestic arrangements people are not creating contracts. It was considered absurd to think that Ms Kirishani would have sued him for the money he owed, which was recorded in a spreadsheet that they had both amended to reflect the debt. Whilst there is logic in the argument that people in loving relationships are not operating contractually, it does highlight the current inconsistent legal approach to cohabiting couples and the limited scope for financial claims on relationship breakdown. 

There are two reasons for optimism, however. One is in the form of the forthcoming Law Commission consultation, which it is anticipated should result in law reform and greater clarity for cohabiting couples. And the other is that the presumption referenced in the case above is relatively easily rebuttable, which is good news for those who enter into cohabitation agreements to determine a fair outcome in the event of relationship breakdown. In the absence of law reform, such agreements remain one of the best ways for cohabitants to protect their position.