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You are here: BAILII >> Databases >> The Law Commission >> Cohabitation: The Financial Consequences of Relationship Breakdown [2006] EWLC 179(11) (04 May 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/179(11).html Cite as: [2006] EWLC 179(11)

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PART 11

PROCEDURE, JURISDICTION AND OTHER ISSUES

INTRODUCTION

11.1      In the course of this Consultation Paper we have explained the deficiencies of the current substantive law applying between cohabitants on the termination of a relationship by separation, in particular. In Parts 5 to 7, 9 and 10, we have set out questions designed to elicit opinions on the design of a statutory scheme whereby, subject to the parties opting out, claims could be made on separation. In Part 8, we have provisionally proposed consequential reform of existing remedies for cohabitants under the Inheritance (Provision for Family and Dependants) Act 1975.
11.2      In this Part, we consider in outline what we perceive to be the procedural implications of a new scheme for financial relief on separation, and in particular how it would fit within existing procedural structures.^[1]
11.3      We have been guided by the conviction that any new system should be readily accessible to all those who would be likely to derive benefit from it, and readily comprehensible to all those whom it would be likely to affect. It should be:

(1) fair;

(2) transparent;

(3) straightforward; and

(4) cost-sensitive – that is, proportionate to the assets at stake.

PROCEDURAL ISSUES RELATING TO THE SEPARATION SCHEME

Family proceedings

11.4      We are strongly of the view that claims pursuant to a new scheme should be characterised as family proceedings rather than as civil proceedings. They should be heard in the family courts, and the procedure should be governed by the Family Proceedings Rules.
11.5      Although we are keen to see any new remedy given a simple, case-managed procedure, it is not for the Law Commission to propose new forms or court rules. This is properly a matter for the Family Procedure Rule Committee.
11.6      The Family Proceedings Rules (the Rules) have an overriding objective (applicable to ancillary relief claims) of enabling the court to deal with cases justly.^[2] Subject to the views of the Family Procedure Rule Committee, we would seek to advance a similar objective in relation to our proposed separation scheme.
11.7      The Rules define "dealing with a case justly" in ancillary relief proceedings as including, so far as is practicable -

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate -

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.^[3]

11.8      We hope that any new scheme would alleviate the present problems faced by cohabitants whose family disputes may currently form the subject matter of several different cases heard in different courts by different benches. These separate hearings often result in an unnecessary duplication of work.

The court

11.9      The first issue is the level of court that would be appropriate to hear claims brought under the statutory separation scheme.
11.10      Three levels of court routinely hear family cases at first instance: the family proceedings court, the county court and the High Court. On 1 April 2005, following the recommendations of the Auld Review^[4] the Magistrates Courts Service became part of Her Majesty's Courts Service. This linked the administration of magistrates', Crown, county and Supreme Courts for the first time. Family proceedings courts, which are part of the magistrates' courts structure, became subject to the same administration as the High Court and county courts.
11.11      This unification has lent strength to proposals for a unified family court system including all three tiers of family courts. Proposals for unification have been put forward by various organisations (including the Law Society,^[5] Resolution (formerly the Solicitors Family Law Association),^[6] and more recently by the Family Law Bar Association,^[7] by the Association of District Judges^[8] and by Dame Elizabeth Butler-Sloss,^[9] the former President of the Family Division). The Department for Constitutional Affairs is keen to consider such plans and to ensure that cases are heard at appropriate levels, and has recently consulted on the question.^[10]
11.12      Various suggestions for the method of unification have been made. One proposal, which has been proposed by the Department for Constitutional Affairs among others, is to introduce a "gatekeeper" process whereby after proceedings are issued, different cases are categorised and allocated by (in many instances) a district judge to the most appropriate level of court. The present discussion section should be read with this background in mind.
11.13      The family proceedings court currently has a limited role in relation to financial disputes between cohabitants. Property disputes brought under the Trusts of Land and Appointment of Trustees Act 1996 or under the general law of trusts are heard (depending on the complexity of the case and the amount at stake) either in the county court or the High Court. If the amounts involved are small, the family proceedings court has power to hear applications for maintenance of a child or for capital provision under Schedule 1 to the Children Act 1989. However, the majority of such claims are heard in the county court, and a small number in the High Court.
11.14      Jurisdiction to hear claims for ancillary relief on divorce (under Part II of the Matrimonial Causes Act 1973) is vested in the county court and the High Court. The large majority of these claims are heard by district judges sitting in the county court or in the Principal Registry of the Family Division. As a result they have an unrivalled expertise in the exercise of the jurisdiction. ^[11]
11.15      A claim under any new scheme for financial relief on separation which we are provisionally proposing would place similar demands on the court as a claim for ancillary relief. Most applicants, we envisage, would be seeking capital provision by way of lump sum payment or transfer of property. We would anticipate that orders for periodical payments would be made in relatively few cases. There would be many cases where an applicant would bring proceedings for financial relief both under the separation scheme and under Schedule 1 to the Children Act 1989, and such proceedings should be joined and heard together. The family proceedings court is only authorised to make lump sum orders in Schedule 1 proceedings of up to £1000. We are therefore of the view that it would be sensible that separation claims should be heard for the most part in the county court, with the potential for complex cases to be heard in the High Court.
11.16      Subject to any reforms to the court structure as it applies to family cases, we provisionally propose that claims under a new scheme for financial relief on separation should be heard in the county court or the High Court. Do consultees agree?

The process

11.17      There are several issues concerning the court process on which we would welcome views. Although all have relevance beyond remedies on separation, they would impact upon our proposed scheme and therefore come within the scope of the consultation.

Procedural rules

11.18      We have already expressed the view that claims for financial relief should be characterised as family proceedings, that the Family Proceedings Rules should therefore be applicable, and that it should be the responsibility of the Family Procedure Rule Committee to promulgate the relevant forms. It would be necessary for the parties to provide and to exchange information about their respective finances so that the court has the relevant material on which to act, and the ancillary relief process is the obvious model to consider.
11.19      Parties in ancillary relief hearings usually give disclosure of their financial position on a standard court form, Form E.^[12] We are aware that completion of Form E is a lengthy exercise, and it may be that a simpler form would be desirable for some cohabitants' claims. It would be necessary also to consider the likelihood of such claims being joined with claims under Schedule 1 to the Children Act 1989 which requires details of an applicant's finances on a different form, Form 10A.^[13] These would be matters for the Rule Committee.
11.20      Family proceedings tend towards informality. Judges have greater powers to admit hearsay evidence, counsel are rarely robed, and litigants are often invited to address the judge directly. We consider that this degree of informality would be appropriate for cohabitants' claims.
11.21      We provisionally propose that claims by cohabitants under our proposed scheme for financial relief on separation should be treated as family proceedings, and the promulgation of rules should be referred to the Family Procedure Rule Committee. Do consultees agree?

Case management

11.22      Case management would be of considerable importance. At an early stage, consideration might have to be given to (1) whether it is necessary to obtain valuations of capital assets in cases where the amount of capital involved is small, (2) whether the claim is capable of mediation or some other alternative dispute resolution, and (3) whether there should be split trials.

VALUATION OF ASSETS

11.23      Following disclosure, each party would be likely to be asked to provide a valuation of the assets that had been disclosed. It would be necessary to ensure that valuations were ordered only where it was proportionate to do so.

MEDIATION

11.24      Many cohabitants' claims are likely to be susceptible to compromise. Mediation, and other alternative methods of dispute resolution, might often^[14] be an appropriate means of facilitating agreement. Therefore, it would be necessary to ensure that there was ample opportunity within the process for claims to be referred to mediation, not only immediately following commencement of the litigation but also at later stages. The difficult question of penalising parties by way of costs orders for failure to agree to mediate would also have to be addressed.

USE OF SPLIT TRIALS OR APPLICATIONS TO STRIKE OUT

11.25      In order to bring a successful claim under our proposed statutory scheme, a applicant would be required to prove that:

(1) the applicant and the respondent's relationship fell within the basic definition of cohabitants; and

(2) their relationship satisfied any additional eligibility requirements, for example relating to the presence of children or a minimum duration requirement.

11.26      If these issues were to be raised, we consider that the question of whether the parties came within the jurisdiction of the new scheme should be determined at a preliminary hearing before a family judge. If the applicant failed to prove these qualifications, any claim under a new statutory scheme for cohabitants would have to be dismissed. The applicant would, however, remain entitled to claim under the general law of implied trusts, with its more generous limitation period.^[15] In addition, the applicant might have a claim under Schedule 1 to the Children Act, which would continue.
11.27      In some cases, the issue of whether or not the new law applied to a case might be best tried separately before the parties were put to the expense of discovery and obtaining valuations of assets, contributions, earning capacity, and so on. To do so would have the potential to save the parties a considerable amount in legal costs. In the event of the applicant succeeding, it might encourage the parties to negotiate a compromise, with the assistance of mediation if appropriate. In the event of the respondent succeeding, no further legal costs would be incurred in respect of a claim under any new statutory scheme.
11.28      However, there is a risk that splitting trials might only add to the costs of the action. We doubt therefore that it should become routine to order split trials in such cases. It may be best to leave each case to the discretion of the judge. Rather than allowing a separate trial of jurisdictional matters, it would always be possible for the respondent to apply for the claim to be struck out unless the applicant could satisfy the court that it had jurisdiction.
11.29      We invite the views of consultees on the case management of cohabitants' claims under any new scheme, both generally and with particular reference to the issues of:

(1) valuation of assets;

(2) mediation and alternative dispute resolution; and

(3) the desirability of split trials.

Costs

11.30      The applicable principles on costs in civil litigation are to be found in the Civil Procedure Rules. To simplify, the traditional rule in civil litigation is that "costs follow the event" so that the loser pays the legal costs of the winner.
11.31      In 2004, the President's Ancillary Relief Advisory Group proposed that there should be a different approach to costs in ancillary relief cases. Orders for costs should not normally be made. Instead, the legal costs should be a charge on the matrimonial property before its division between the parties. Only in exceptional cases, where a party is guilty of "litigation misconduct" or fraud, should a costs order be made against them. The Family Proceedings Rules were amended to incorporate this scheme,^[16] which came into effect on 3 April 2006.
11.32      In our view, a consistent approach to costs as between ancillary relief claims and claims between cohabitants under a new scheme would be sensible.
11.33      We invite the views of consultees on whether steps should be taken to ensure consistency of approach on orders for costs as between ancillary relief claims and claims made by cohabitants under any new scheme on separation.

Openness

11.34      It had generally been assumed by practitioners that family proceedings were heard in private, that details of cases should not be disclosed and that neither party might, for instance, publish the content of the pleadings or even the judgment. These assumptions have recently been questioned by a series of cases.^[17] The Department for Constitutional Affairs ("DCA") intends to consult on the general question of openness in family proceedings, and its consultation paper on the question is expected to be published later this year.^[18]
11.35      This is a general issue of wider significance than our current project. In view of the consultation exercise being conducted by the DCA, we do not intend to solicit views of consultees here. We do, however, anticipate that whatever reforms emanate from the current DCA consultation exercise could usefully be applied to cohabitants' claims under any new scheme on separation.

Public funding

11.36      Public funding is becoming increasingly difficult to obtain, for instance in relation to ancillary relief on divorce, and it would be for the Legal Services Commission to decide whether or not to make public funding available for cases brought under any new scheme. If parties were able to apply for public funding, the costs to the Commission's Children and Family Services budget might rise, although it may be that any increase could be offset by means of the statutory charge. There might, however, be a corresponding decrease in the costs to the fund of Trust of Land Act applications, currently funded by the Commission from its civil budget.
11.37      Without public funding, one party might be represented in proceedings while the other was not. We are aware, however, that it is not uncommon in the family courts for one party to be represented while the other is not. In injunction hearings, for example, the respondent is often unrepresented while the applicant has legal advice. We do not think that this would prove a difficulty in cases between cohabitants under our proposed scheme.
11.38      However, it would be particularly important to ensure that the application process was easily understood by applicants who act in person and that the judge should be ready and able to give such assistance to litigants in person as was appropriate and consistent with the overriding objective to deal with cases justly. It is also important that the law should be clear enough to allow parties to reach a settlement by negotiation rather than through the court. We are aware of the extra time and work which members of court staff undertake to guide litigants in person through the court system. Our view is that the litigants concerned are already receiving such assistance when they are involved in proceedings relating to trusts. We do not think that the work for court staff would increase as a result of any new law.
11.39      We invite the views of consultees as to the public funding of cohabitants' claims under any new scheme on separation and as to the ways in which the accessibility of the scheme to those acting without legal advice or representation could be maximised.

ANTI-AVOIDANCE

11.40      Section 37 of the Matrimonial Causes Act 1973 contains provisions avoiding certain transactions intended to prevent ancillary relief being granted at all or to reduce the amount of any award made within ancillary relief proceedings.^[19] The court has powers to restrain such transactions before they take place and to set dispositions aside when they have occurred.^[20] These are important and useful provisions. In our view, it would be necessary to have such provisions in relation to any new scheme on separation applicable between cohabitants.
11.41      We provisionally propose that any new scheme should include anti-avoidance provisions modelled upon section 37 of the Matrimonial Causes Act 1973 to prevent the disposition of assets, and to set aside dispositions that have been made, in order to frustrate a claim for financial relief. Do consultees agree?

ENFORCEMENT

11.42      Orders for financial relief on separation should be supported by efficient enforcement machinery. Various enforcement procedures are currently available to enforce orders for ancillary relief on divorce and orders made under Schedule 1 to the Children Act 1989. We consider that the same enforcement procedures should be available in respect of orders for financial relief made under a new scheme.
11.43      We provisionally propose that the machinery that is currently available to enforce family court orders should be available to enforce orders for financial relief made under any new scheme.

JURISDICTION AND APPLICABLE LAW^[21]

11.44      It is important that the territorial extent of any new scheme for financial relief on separation should be defined.^[22] That is to say, we need to determine when and on what basis the English courts should have the power to hear and decide a case, given the parties' connections with this and other jurisdictions. In most cases, where the couple have only ever lived, separately or together, in England and Wales, and all of their property is located here, this is entirely straightforward. But other cases have a substantial foreign element^[23] which prompt questions about whether our courts should have jurisdiction over the case at all and, if so, what law our courts should apply to decide the case: English law, or the law of some other country?^[24]
11.45      This is important for various types of couples, for example, those who form relationships while living in this country and subsequently remove to another jurisdiction; individuals from other jurisdictions, in particular within the European Union, who migrate here with existing partners; and UK citizens who have been living abroad who return home with a new partner.^[25]

Jurisdiction in family law: a developing area

11.46      The jurisdiction of English courts^[26] in family law varies according to the particular area of family law concerned and the applicable legislation in that area. Some fields are now the subject of European Community Regulations,^[27] notably Brussels II Bis,^[28] and, to a much lesser extent, Brussels I.^[29]
11.47      We understand that the European Commission will be publishing a Green Paper later this year on the issue of jurisdiction and recognition and enforcement of judgments in the area of matrimonial property throughout the European Union. This paper might extend to an examination of the positions of cohabitants, as well as spouses and various Member States' schemes for "registered" partners.^[30] Any proposals that we may make in relation to private international law in the course of this project might have to be reviewed in light of the Commission's Paper and the outcome of that consultation. Our discussion of the issue here is therefore essentially exploratory, and we encourage consultees to contribute to that discussion and to any consultation on this issue at EU level.

Current rules on jurisdiction in family law

11.48      It may be helpful for the purposes of selecting appropriate rules for any new scheme on separation to have regard to rules currently operating in comparable parts of family law.

JURISDICTION TO ORDER ANCILLARY RELIEF ON DIVORCE

11.49      The English courts' jurisdiction to order ancillary relief on divorce varies, according to whether those courts also granted the divorce decree.
11.50      If the English court itself granted the decree of divorce, it will have jurisdiction to make financial provision as well. Ancillary relief jurisdiction therefore flows primarily from the jurisdiction rules governing the divorce, currently those set out in EC Regulation, Brussels II Bis.^[31] Under this Regulation, the English court has jurisdiction to grant a decree of divorce where one or more of the following applies:

(1) the parties are both habitually resident in England and Wales;

(2) the parties were last habitually resident in England and Wales and one of them still resides here;

(3) the respondent is habitually resident in England and Wales;

(4) in the event of a joint application, either party is habitually resident in England and Wales;

(5) the applicant is habitually resident in England and Wales and he or she has resided here for at least a year immediately before the application was made; or

(6) the applicant is habitually resident in England and Wales and he or she has resided here for at least six months immediately before the application was made and is domiciled here; or

(7) both parties are domiciled in England and Wales.

11.51      The Matrimonial and Family Proceedings Act 1984 determines when the English court has jurisdiction to grant ancillary relief in relation to divorces obtained overseas. The court's leave is required for any application for ancillary relief to be made, and substantial grounds are required for leave to be granted. Jurisdiction here arises if: ^[32]

(1) either party was domiciled in England and Wales when the application for leave is made, or was so domiciled when the overseas divorce was obtained;

(2) either party was habitually resident in England and Wales throughout the period of one year ending with the date when the application for leave was made, or was so resident for a year preceding the divorce decree; or

(3) either party had, at the date of the application for leave, a beneficial interest in possession in a dwelling house situated in England and Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.

11.52      It might be argued that the Brussels II Bis Regulation does not provide a suitable analogy for cohabitants' cases, in so far as the regulation is expressly concerned with the dissolution of matrimonial ties, and so of personal status, and not directly with financial relief. Indeed, the latter is expressly excluded from its scope.^[33] Obviously, in the case of cohabitants, there is no "divorce" or similar change of legal status, and so no analogy based on divorce law works precisely. However, English law takes the view that its courts may properly grant financial relief wherever it has granted the divorce decree. It may therefore be felt that the matters of divorce and financial relief are not so far removed from each other that the substance of Brussels II Bis could not be used by analogy as a basis for jurisdiction to grant financial relief between cohabitants on separation.
11.53      In some ways, the 1984 Act analogy is also inappropriate. By definition, these cases have a strong foreign element in consequence of the fact that the court of another country has already taken jurisdiction over the couple by granting the divorce decree. It is perhaps because of that that the 1984 Act includes a requirement of leave and the requirement that, even if one of the conditions set out above applies, the court further consider whether in all the circumstances it is the appropriate forum for the application.^[34] However, the basic grounds on which jurisdiction may be taken are nevertheless instructive for the development of a new scheme for cohabitants' cases. The third option is particularly suited to applications for financial relief, turning as it does on the presence within England and Wales of a key asset over which the court might wish to exercise its jurisdiction.

ORDERS FOR "MAINTENANCE", INCLUDING SCHEDULE 1 TO THE CHILDREN ACT 1989

11.54      Whether the divorce is granted by the courts of this jurisdiction or overseas, applications for "maintenance"^[35] fall within the scope of EC Regulation, Brussels I.^[36] Brussels I provides that a respondent domiciled in a Member State may be sued for maintenance in the courts of that State,^[37] or in the State where the maintenance creditor is domiciled or habitually resident, or, if the matter is ancillary to proceedings concerning the status of a person, in the court which according to its own law has jurisdiction to entertain those proceedings.^[38]
11.55      Orders made under Schedule 1 to the Children Act 1989 are also subject to Brussels I. The range of orders available to the court in some trans-national cases is limited. Where the parent against whom the order is made lives in England and Wales but the child lives outside England and Wales with his or her primary carer,^[39] the courts have jurisdiction only to make orders for periodical payments.^[40]

INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

11.56      Jurisdiction under this Act depends upon the deceased having been domiciled in England and Wales at the time of death.^[41]
11.57      It has recently been observed that the domicile rule is looking increasingly antiquated now that jurisdiction in most of family law depends principally on habitual residence.^[42] Moreover, there may be thought to be a lacuna in the law. Matrimonial jurisdiction depends largely on habitual residence;^[43] if the respondent to those proceedings does not die domiciled in England and Wales, the proceedings cannot then be transferred to the court's jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975.^[44]
11.58      The time may be ripe for a reconsideration of whether domicile is an appropriate ground for jurisdiction under the 1975 Act, but it falls outside the scope of the present project. Cohabitants' claims under that Act will therefore continue to depend upon the deceased's domicile.

Jurisdiction under a new scheme for financial relief on separation

11.59      We are currently of the view that the jurisdictional rules for a new statutory scheme for cohabitants, which are currently entirely a matter for domestic law to determine, should be modelled on Brussels II Bis. The habitual residence test has become the most common ground for jurisdiction throughout family law, and we consider it is sensible to harmonise jurisdictional rules applying to different categories of domestic family proceedings as far as possible.
11.60      Any domestic rules would obviously have to accommodate any international instrument within which the applicant's claim fell, such as the optional ground for jurisdiction in relation to maintenance under Brussels I.^[45]
11.61      Adoption of the Brussels II Bis model might also suggest that the rule of lis pendens, should be applied, so that the court first seised takes exclusive jurisdiction,^[46] in preference to the common law approach of forum non conveniens.

Applicable law

General rule

11.62      In our view, the issue of applicable law is more straightforward. English law applies the lex fori (the law of the forum, here English law) to family law matters, including grounds for divorce and consequences of divorce such as ancillary relief, dealt with in the courts of this jurisdiction,^[47] and we consider that the same should apply to financial relief between cohabitants on separation and death. In so far as jurisdiction were based on the parties' habitual residence and it were a requirement that claims be brought within twelve months of separation, it is likely that lex fori would in any case be the law of the place in which the parties had (most recently) been cohabiting.
11.63      The application of the lex fori would be subject to the acquiescence of the lex situs (the law of the place in which the property is situated), at least in relation to immoveable property not located within the geographical bounds of the forum, and possibly also in relation to moveable property.^[48]

Cohabitation contracts, opt-out agreements and choice of law clauses

11.64      The validity of choice of law clauses can only be addressed in light of the applicable law in relation to cohabitation contracts and opt-out agreements generally. Whatever approach is taken, it might be desirable that legislation set out the rules governing applicable law, rather than that the courts be left to deal with the issue.
11.65      The Rome Convention on the law applicable to contractual obligations does not apply to contractual obligations relating to "rights and duties arising out of a family relationship".^[49] Although, to our knowledge, this point has not been tested in litigation in this jurisdiction, it seems likely that cohabitation contracts are not subject to the Convention.^[50]
11.66      At common law, the lex fori is not applied to issues relating to contracts, including marital contracts.^[51] In relation to cohabitation contracts, the preferable law for determining the creation, validity, interpretation and effect of such contracts might be the "proper law of the cohabitation" (the law of the place with the closest connection to the cohabiting relationship) or "the proper law of the contract" (the law of the place with the closest connection to the contract). The parties' personal laws would probably govern their individual capacity to contract, or perhaps the proper law of the cohabitation. Whether an express choice of law clause could be binding would therefore be governed by the law governing the contract itself.
11.67      However, when a marital contract or settlement made under a law allowing such agreements to be binding on divorce is asserted in the course of ancillary relief proceedings in this jurisdiction, the English courts will not simply give effect to it. The lex fori which governs ancillary relief is mandatory, and so trumps the proper law of the contract (or trust) which would otherwise apply to disputes relating to it. The courts treat such agreements (and the foreign law which might otherwise apply to them) in the same way as agreements made under English law: as not binding and therefore only a factor to be taken into account by the court in exercising its discretion.^[52] Some commentators have criticised English law for adopting this approach, and approved of cases which indicate that an English court might give substantial weight to such agreements.^[53]
11.68      There is therefore a clear choice to be made in devising a new scheme for cohabitants. Should any new scheme for financial relief on separation adopt for cohabitation contracts^[54] and purported opt-out agreements the approach currently applicable to marital contracts, or should it allow the relevant foreign law to apply?
11.69      If the matrimonial law approach were adopted, then once the court's jurisdiction under the scheme had been invoked, English law would apply. Particularly in so far as the agreement purported to oust the jurisdiction of any court to make orders for financial relief, it might be thought desirable that English law (with its safeguards for opt-out agreements discussed in Part 10) should determine whether the agreement should have that effect. On pragmatic grounds, the time and cost that would be incurred in attempting to rely on foreign law, and the difficulties that our courts might face in attempting correctly to interpret and apply it, might seem disproportionate to any benefit that might be thought to accrue to the parties from permitting them to nominate their preferred law.
11.70      However, since the English family courts, in exercising their discretion under English law to determine what a fair outcome would be, are increasingly taking a "sideways look" at the outcome that would have been provided under the relevant foreign law, such costs may be unavoidable.^[55] Moreover, cases involving contracts made under foreign law might be relatively rare, and it can be argued that party autonomy ought to prevail in those cases.
11.71      We invite the views of consultees on the private international law aspects of any new scheme for financial relief on separation, in particular:

(1) do consultees consider that Brussels II Bis provides a suitable analogy for jurisdictional rules for any new scheme for financial relief on separation of cohabitants?

(2) do consultees consider that the law of England and Wales should apply as the governing law in all cases arising in an English forum concerning:

(a) financial relief on separation;

(b) cohabitation contracts; and

(c) opt-out agreements; and

(3) do consultees consider that there are any other implications which cases with an international dimension may have for the development of any new scheme?

LIMITATION PERIOD FOR CLAIMS ON SEPARATION^[56]

11.72      Our provisional view is that claims should have to be brought expeditiously following separation. This seems particularly desirable in relation to cohabitants, who should be able to draw a line under their past relationship as soon as possible. Moreover, to allow claims to be made a considerable time after the end of the relationship might lead to complications if the former cohabitants have commenced other relationships following separation. We do not think that in most cases it would be unreasonable to expect claims to be brought within one year of the parties' separation.^[57]
11.73      However, there may be circumstances where one year may be too short. For example, a man and a woman may have been living together for some time (but not necessarily for the required minimum duration, if one is recommended) when they separate. At that point, neither would have a claim against the other. Subsequently, the woman discovers that she is pregnant by her former partner. She might have a substantial claim against him for financial relief, but if she discovered her pregnancy sometime after their separation she would effectively have a shorter time to bring her claim than other applicants.
11.74      Cases in which cohabitants are expecting children at the time of separation could be accommodated either by:^[58]

(1) making specific provision that the claim must be brought within twelve months of the birth of the child; or

(2) by making general provision to the effect that the court should be able (in exceptional circumstances) to grant permission to bring a claim out of time.

11.75      We appreciate that, on the face of it, this rule would also benefit a cohabitant who was aware that she was in the early stages of pregnancy at the time when the parties separated. We think that it might be expensive and difficult to inquire into the timing of the applicant's knowledge. However, if route (2) were adopted, the question of when the applicant discovered she was pregnant could be brought to the attention of the judge when the application for leave to apply out of time was considered.
11.76      We must also consider the possibility of extending the limitation period so that a respondent could use the new scheme defensively. Suppose that A and B in Example 1B in Part 7 were potentially eligible under a new scheme, but neither made a claim because they considered that their respective claims would cancel each other out. After the scheme's limitation period expired, but within the general law's limitation period, A might attempt to make a resulting trust claim. We consider that, in such circumstances, B (whose economic disadvantage claim may not be mirrored by any comparable claim under the general law) should be able to invoke the scheme in order to defend the trust law claim.^[59]
11.77      We provisionally propose that claims under a new statutory scheme should be brought within one year of the parties' separation. Do consultees agree?
11.78      We invite the views of consultees as to whether:

(1) the time period for making a claim under any new scheme should be extended to one year from the birth of a child of the cohabitants where, at the time of separation, the applicant is pregnant by the respondent;

(2) there should be a general discretion vested in the court to extend the time period for making a claim in exceptional circumstances;

(3) it should be specifically provided that a party who would be out of time for the purposes of making a claim under any new scheme ought to be permitted to invoke a claim under the scheme defensively to an action brought by the other party under the general law.

RETROSPECTIVE OPERATION OF ANY NEW SCHEME

11.79      There are two key areas that need to be considered in relation to retrospectivity:

(1) the treatment of relationships that began and ended prior to any new scheme coming into force; and

(2) the treatment of relationships that began prior to the scheme coming into force, but continued thereafter.

No full retrospectivity

11.80      It would clearly not be appropriate for any new scheme to apply to relationships which ended prior to new legislation coming into force. Indeed, it might be argued that the application of a new scheme to such relationships would interfere with respondents' property rights in a way that violated Article 1 to the First Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms.^[60]

Treatment of existing relationships

11.81      More difficult issues arise in relation to the treatment of relationships which began prior to the new law and which were continuing when it came into force.^[61] While the basis for the remedy granted might relate to contributions made during part of the relationship which predated the coming into force of the Act (an issue we consider below), the remedy granted to applicants would provide financial relief as a result of the post-commencement event of separation. These cases therefore straddle the retrospective/prospective line.
11.82      Three particular questions arise:

(1) the impact on existing property and contractual rights, in particular express trusts and cohabitation contracts;

(2) whether, if a minimum duration test had to be satisfied in order for an applicant to be eligible to apply for remedies, cohabitation prior to the new law should count towards that requirement, or whether the clock should only start to run from the commencement of the new law; and

(3) whether, if the scheme did apply to such relationships, the provisions dealing with the right to opt out should be brought into force early, to enable those in existing relationships who wished to do so to regulate their own affairs before the main part of the Act came into force.

Impact on existing property and contractual rights

11.83      Assuming for the time being that the scheme could apply to relationships that began before the new scheme came into force, we consider here the implications of that position for the parties' existing property and contractual rights.

EXISTING IMPLIED TRUSTS AND ESTOPPEL EQUITIES

11.84      Since we do not propose that any new scheme should prevent claims being brought under the general law, no applicant with an accrued implied trust or estoppel claim would be deprived retrospectively of such an interest.^[62]

EXPRESS TRUSTS AND COHABITATION CONTRACTS

11.85      Many cohabitants buying their home together hold it on trust, with the extent of their beneficial interests expressly declared, it is now compulsory to make an express declaration of the beneficial interest, as a result of new Land Registry rules.^[63] Given the current lack of remedies for cohabitants, many of those couples making express declarations will have done so not only to determine the basis on which the property is to be held during the relationship, but also on the clear understanding that these are the shares to which each will be entitled in the event that they separate or one of them dies. A similar issue arises in relation to any cohabitation contract that might have been made by the parties.
11.86      It might be considered undesirable that a new scheme should upset these settled arrangements made between cohabitants under the current law. The current advice from solicitors, and consequential expectations among those who have been legally advised, is that a declaration of trust, in particular, is conclusive.^[64] As a matter of policy, it might seem difficult to justify applying a new default scheme to couples who have made their own provision in that way. It might be burdensome to insist that, if they wished those arrangements to stay in place, such couples should take fresh steps to opt out of any new regime.
11.87      On the other hand, it might not be appropriate to exclude such couples from the scheme entirely. An express trust could only affect the trust property, and not exclude the remainder of the couple's financial relations from the reach of the scheme. Moreover, these couples could not realistically be described as having opted out of a scheme that was not in existence when they made their agreement. Nor would the fact that they were quite content to make those arrangements in the absence of a statutory scheme of the sort introduced necessarily indicate that they would have reached the same agreement had the new scheme been in force. The existence of the new scheme might radically alter the context in which they reached their agreement.

SEPARATE PROPERTY HOLDINGS

11.88      There remains, of course, the straightforward fact that any retrospective operation of a new scheme would potentially impact on the parties' separate property holdings. Just as some parties have expressly agreed on their shares in jointly held property on separation by executing trusts and contracts defining their interests, others might have deliberately self-regulated by simply keeping their assets entirely separate. Such "agreements", albeit not manifested in any binding legal instrument, ought to be treated in the same way as express trusts and contracts for the purposes of the retrospective application of a new scheme.

CONCLUSIONS

11.89      Since any new scheme would operate remedially, rather than by creating property rights, it is fair to observe that any order made against respondents would not entail any retrospective expropriation of their property, with consequent implications for prior dealings with third parties. Any order would have only prospective effect on respondents' resources. To that extent, the force of concerns about retrospectivity must be considerably diminished.^[65]
11.90      We consider that the remedial, discretionary nature of the sort of scheme that we currently prefer could appropriately be applied to relationships which began prior to the Act coming into force, and that it would be proper for the court to be able to interfere with express arrangements made prior to existence of the new scheme. However, the discretionary nature of the scheme would enable the court to have regard, where appropriate, to prior arrangements and expectations of the parties.
11.91      Although this would mean that respondents' existing property rights could be interfered with by the court's order, we consider that the potential for such interference could be made more proportionate^[66] by providing an opportunity for couples to opt out of the scheme, as such, before it comes into force. We discuss this below at paragraph 11.95.

Satisfying a minimum duration requirement

11.92      Suppose that a new scheme applied to couples without children only if their relationship had lasted at least two years. If relationships already in existence had to satisfy that minimum duration requirement with continued cohabitation post-commencement, many deserving putative applicants currently in long-term relationships might be denied access to a remedy which it had been judged appropriate to give individuals in their position, should the relationship falter before the minimum duration requirement were satisfied. On the other hand, putative applicants whose relationships faltered just before the Act came into force would suffer exactly the same problem. The effect of drawing any line would be to exclude some apparently deserving cases.
11.93      It would also be necessary to consider whether, even supposing the minimum duration requirement were so satisfied, the court could have regard to contributions made by the parties before the Act came into force and, in particular if the scheme applied only to certain of the parties' assets, whether assets acquired prior to the Act ought to be excluded. It seems to us that the operation of any distinction between contributions made and assets acquired pre- and post-commencement would be extremely burdensome, so it would seem preferable for the entire period of the relationship to be relevant to the grant of relief, even if eligibility depended entirely on post-commencement events.
11.94      If existing relationships did have to satisfy any minimum duration requirement during the lifetime of the legislation, that would reduce the need for the next mechanism - early opt-outs. However, if couples with children would be automatically eligible, opportunity for early opt-out might remain desirable.

Early opportunity to opt out?

11.95      The experience of New Zealand when it introduced its radical reforms^[67] is instructive. That scheme applied retrospectively in so far as relationships in existence when the law came into force were covered, and pre-commencement cohabitation counted towards the three-year duration ordinarily required for cohabitants without relevant children to fall within the scheme. However, the provisions of the Act which permitted couples to opt out of the scheme came into force earlier, and received considerable media attention, so that those couples who wished to do so could opt out before the new regime potentially applied to them.
11.96      It seems to us at this stage that the best balance between the interests of putative applicants and respondents might be secured by providing, as in New Zealand, that:

(1) any new scheme should apply to extant relationships and that pre-commencement cohabitation should count towards any minimum duration rule; but

(2) the rules permitting parties to make opt-out agreements should come into force one year prior to commencement of the substantive provisions.

11.97      This arrangement would enable parties wishing to do so to secure their property rights by opting out or withdrawing from a relationship that would otherwise be eligible under the scheme.

No retrospectivity at all?

11.98      The only remaining option would be for the scheme to apply only to relationships which began after the Act came into force. This would give any new scheme a very long run-in, leaving the millions of current cohabiting couples and their children to deal with the deficiencies of the current law identified in Part 4. This does not seem to us to be a satisfactory option.
11.99      We invite the views of consultees on the proper way in which to balance the interests of putative applicants and respondents in relation to the retrospective operation of any new scheme, or whether any scheme should instead operate only prospectively.

IMPACT OF REFORM

11.100      We have referred at various points in this paper to the potential impact of any legislative reform of the law governing cohabitants.^[68] Changes to the law would be likely both to confer benefits and impose costs.
11.101      Current practice requires Government Departments considering policy recommendations to assess the regulatory impact of law reform proposals on business (particularly small businesses), charities and the voluntary sector.
11.102      We consider that the reform options provisionally proposed and otherwise discussed in this paper are unlikely to have any significant impact on business. However, reform in this area would potentially impact on those areas of the charitable and voluntary sectors that provide advice and support to individuals on family law matters, for example, in terms of increased demand for assistance.
11.103      We are at present unconvinced that reform would give rise to any significant negative impact on such organisations. As this paper makes clear, there is already a raft of law that applies to cohabitants. Much of that law would be unaffected by the provision of new or revised statutory remedies on separation and death. Any new statutory remedies on separation would largely replace complicated equitable remedies about which cohabitants currently seek advice. We would be grateful for any information or views which either support or challenge this preliminary view.
11.104      It is also necessary to look beyond the matters formally required to be considered in a Governmental regulatory impact assessment. We wish to be able to assess whether reform options could give rise to wider adverse consequences^[69] and, if so, how such impact could be minimised and whether it is disproportionate to the benefits likely to be achieved. We would therefore be grateful for any information or views about the wider impact of our provisional proposals and other reform options on individuals and on the resources of judicial, Governmental and other relevant organisations.
11.105      We invite the views of consultees on the impact of the provisional proposals and reform options discussed in this paper and would welcome any other information relevant to the assessment of the consequences of reform.

Note 1    Claims on death would continue to be subject to the procedural and other rules applying to claims under the Inheritance (Provision for Family and Dependants) Act 1975.     [Back]

Note 2    Family Proceedings Rules, r 2.51D(1), originally inserted by the Family Proceedings (Amendment No 2) Rules, SI 1999 No 3491.    [Back]

Note 3    Family Proceedings Rules, r 2.51D(2), inserted by the Family Proceedings (Amendment No 2) Rules, SI 1999 No 3491.    [Back]

Note 4    Lord Justice Auld, Review of the Criminal Courts of England and Wales (2001). Available at http://www.criminal-courts-review.org.uk/ccr-00.htm (last visited 4 May 2006).    [Back]

Note 5    The Law Society’s Family Law Committee first called for the establishment of a unified family court in A Better Way Out (1979). Since then it has supported various initiatives for reform of the family court system including the Family Courts Campaign (later merged with the National Council for Family Proceedings).     [Back]

Note 6    Solicitors Family Law Association, Proposals for a Unified Family Court (1992). Since this paper was published, Resolution (formerly the Solicitors Family Law Association) has supported various initiatives for reform of the family court system including the Family Courts Campaign (later merged with the National Council for Family Proceedings).     [Back]

Note 7    Informal discussions with members of the judiciary in 2004.    [Back]

Note 8    Association of District Judges, A Vision for the Future (2004). The proposals for the future of the family justice system suggested a unified scheme with a gatekeeper judge in children law cases.     [Back]

Note 9    Guidance issued by the President of the Family Division, The Private Law Programme (2004) pp 6-7, where the President refers to the identification of gatekeeper judges to transfer cases to the appropriate level of court in private children law cases.     [Back]

Note 10    Department for Constitutional Affairs, Focusing judicial resources appropriately: The Right Judge for the Right Case (2005) Consultation Paper No 25/05.     [Back]

Note 11    It is currently rare for the Family Proceedings Court to hear an application for maintenance for a spouse or civil partner under the Domestic Proceedings and Magistrates’ Courts Act 1978, although it can make orders for periodical payments and lump sums up to £1,000 on proof of desertion. Likewise the county courts’ jurisdiction under the Matrimonial Causes Act 1973, s 27, allowing the court to make lump sum and periodical payments orders to a spouse or civil partner who can prove that their partner failed to provide reasonable maintenance, is exercised very rarely.    [Back]

Note 12    This may be found on HM Courts Service website at http://www.hmcourts-service.gov.uk/courtfinder/forms/form_e_1200.pdf (last visited 4 May 2006).    [Back]

Note 13    This may be found on HM Courts Service website at http://www.hmcourts-service.gov.uk/courtfinder/forms/c10a_1205.pdf (last visited 4 May 2006).    [Back]

Note 14    Although not always. We are aware that in some cases there is an imbalance of power because of, for example, domestic violence and that this renders the mediation process impossible.    [Back]

Note 15    Claimants have six years to bring a claim under the law of trusts: Limitation Act 1980 s 21(3).     [Back]

Note 16    By the Family Proceedings (Amendment) Rules 2006, SI 2006 No 352.    [Back]

Note 17    Clibbery v Allen [2002] EWCA Civ 45, [2002] Fam 261; Harb v His Majesty King Fahd Bin Abdul Aziz [2005] EWCA Civ 632, [2005] 2 FLR 1108. See also Re D (A Child) (Intractable Contact Dispute: Publicity), F v M (Contact Orders) [2004] EWHC 727 (Fam), [2004] 1 FLR 1226.    [Back]

Note 18    Announcement by Harriet Harman on 12 January 2006: Hansard (HC), vol 441, col 167WH.     [Back]

Note 19    Similar provisions are included in the Civil Partnership Act 2004, sch 5, part 14.    [Back]

Note 20    Interestingly, no such powers are available under Schedule 1 to the Children Act. Any applicant who wishes to prevent a respondent attempting to frustrate a claim under Schedule 1 must apply for a freezing injunction under the Civil Procedure Rules. Such applications must be made in the High Court as the county court has no jurisdiction to entertain them.    [Back]

Note 21    In view of the fact that our proposed scheme would be a specialist branch of “family law”, created by statute, we shall not consider here the jurisdictional rules relating to claims made under the general law of trusts, estoppel and so on. See Dicey and Morris on The Conflict of Laws (13th ed 2000).    [Back]

Note 22    The position in relation to financial provision death is already governed by the terms of the Inheritance (Provision for Family and Dependants) Act 1975, which we discuss below.    [Back]

Note 23    Including Scotland, particularly in light of its new scheme under the Family Law (Scotland) Act 2006.    [Back]

Note 24    J Carruthers and E Crawford, “The Property of Married and Cohabiting Parties – National Report for Scotland”, submitted to the TMC Asser Institute, The Hague (2002).     [Back]

Note 25    For immigration rules relating to cohabitants, see the Immigration Rules, Part 8, Section 1, rr 295AA-295O, available at http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/immigration_rules/part_8/part_9.html? (last visited 4 May 2006).    [Back]

Note 26    We use this expression to refer to courts of both England and Wales.    [Back]

Note 27    Further European developments concerning jurisdiction, the recognition and enforcement of judgments and applicable law are currently under consideration in relation to several areas of family law: see Green Papers on Applicable Law and Jurisdiction in Divorce Matters, Brussels, 14.03.2005, COM (2005) 82 final; on Succession and Wills, Brussels, 01.03.2005, COM (2005) 65 final; and on Maintenance Obligations, Brussels, 15.04.2004, COM (2004) 254 final. Available at http://europa.eu.int/comm/off/green/index_en.htm (last visited 4 May 2006). For UK and other responses to these papers, see http://europa.eu.int/comm/justice_home/news/consulting_public/news_consulting_public_en.htm (last visited 4 May 2006).    [Back]

Note 28    “Brussels 2 Bis” Regulation on Jurisdiction 2201/2003/EC (OJ L338 23.12.2003 p 1), repealing “Brussels 2” Regulation on Jurisdiction 1347/2000/EC (OJ L160 30.06.2000 p 19).    [Back]

Note 29    “Brussels 1” Regulation on Jurisdiction 44/2001/EC (OJ L12/1 16.01.2001 p 1).     [Back]

Note 30    This includes UK civil partnership. Other states’ schemes for registered partnership vary in whether they apply to opposite-sex as well as same-sex couples, and in the similarity of registered partnership to marriage, in terms of the conditions for creation and dissolution and the legal consequences of registration.     [Back]

Note 31    “Brussels 2 Bis” Regulation on Jurisdiction 2201/2003/EC (OJ L338 23.12.2003 p 1), repealing “Brussels 2” Regulation on Jurisdiction 1347/2000/EC (OJ L160 30.06.2000 p 19). Residual domestic rules will apply if there is not jurisdiction under the EC Regulation: Domicile and Matrimonial Proceedings Act 1973, s 5.    [Back]

Note 32    Matrimonial and Family Proceedings Act 1984, s 15.    [Back]

Note 33    “Brussels 2 Bis” Regulation on Jurisdiction 2201/2003/EC (OJ L338 23.12.2003 p 1), recital 8.    [Back]

Note 34    Matrimonial and Family Proceedings Act 1984, s 16.    [Back]

Note 35    This gives rise to potential characterisation problems: see Van den Boogard v Laumen [1997] ECR I-1147. It may be necessary to distinguish between those parts of the court’s order which cater for the applicant’s needs, and those parts of it which can be regarded simply as a division of property arising from the marital relationship. Only the former will be subject to Brussels I.    [Back]

Note 36    “Brussels 1” Regulation on Jurisdiction 44/2001/EC (OJ L12/1 16.01.2001 p 1).     [Back]

Note 37    “Brussels 1” Regulation on Jurisdiction 44/2001/EC (OJ L12/1 16.01.2001 p 1), art 2(1).    [Back]

Note 38    Provided, in the latter case, that jurisdiction is not based solely on the nationality of one of the parties: “Brussels 1” Regulation on Jurisdiction 44/2001/EC (OJ L12/1 16.01.2001 p 1), art 5(2). See also art 24: jurisdiction also arises where the respondent enters an appearance other than simply to contest jurisdiction.    [Back]

Note 39    Parent, special guardian, or person in whose favour a residence order in respect of the child is in force.    [Back]

Note 40    Including secured periodical payments: Children Act 1989, sch 1, para 14. Cf the more limited jurisdiction of the Child Support Agency: Child Support Act 1991, s 44.     [Back]

Note 41    Inheritance (Provision for Family and Dependants) Act 1975, s 1(1); Second Report on Family Property: Family Provision on Death (1974) Law Com No 61.    [Back]

Note 42    Cyganik v Agulian [2006] EWCA Civ 129, [2006] 1 FCR 406, at [58], per Longmore LJ.    [Back]

Note 43    Though see art 3.1(b) of Brussels II Bis and the optional jurisdiction for maintenance claims in Brussels I.     [Back]

Note 44    Harb v His Majesty King Fahd Bin Abdul Aziz (No 2) [2005] EWCA Civ 1324, [2006] 1 WLR 578, at [15], per Thorpe LJ.    [Back]

Note 45    Under Brussels I, art 5(2). However, in so far as our currently preferred scheme would not in theory be based on the parties’ maintenance requirements, it might be argued that any orders made would fall outside the scope of that Regulation.    [Back]

Note 46    See Brussels II Bis, art 19. Note also Brussels I, art 22(1), whereby the courts of the Member State in which property is situated has mandatory jurisdiction in proceedings which have as their object rights in rem in immoveable property. Whether a claim relates to rights in rem may not be an entirely straightforward matter.    [Back]

Note 47    Sealey v Callan [1953] P 135.    [Back]

Note 48    The lex situs will, at the very least, determine the enforcement of any order that the English court might purport to make over such property. See generally J Carruthers, The Transfer of Property in the Conflict of Laws: Choice of law rules concerning inter vivos transfers of property (2005) paras 2.51-2.67.    [Back]

Note 49    Rome Convention on the law applicable to contractual obligations (1980), art 1(2)(b).    [Back]

Note 50    See also Proposal for a Regulation on the law applicable to contractual obligations (Rome I), Brussels, 15.12.2005, COM (2005) 650 final. The Regulation would essentially convert the substance of the Rome Convention into an EC Regulation, and so, like the Convention, would expressly exclude from its scope “contractual obligations relating to a family relationship or a relationship which, in accordance with the law applicable to it, has similar effects, including maintenance obligations” and “obligations arising out of matrimonial relationship or a property ownership scheme which, under the law applicable to it, has similar effects to a marriage, wills and succession”: art 1(2)(b) and (c).    [Back]

Note 51    See L Collins (ed), Dicey and Morris on The Conflict of Laws (13th ed 2000).    [Back]

Note 52    F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45; N v N (Overseas Divorce: Financial Relief) [1997] 1 FLR 900; C v C (Variation of Post Nuptial Settlement) [2003] EWHC 742 (Fam), [2004] Fam 141; cf the views expressed in S v S (Matrimonial Proceedings: Appropriate Forum) [1997] 1 WLR 1200, 1203, per Wilson J.    [Back]

Note 53    Jaffey on the Conflict of Laws (2nd ed 2002) pp 507-9.    [Back]

Note 54    Note that the Recognition of Trusts Act 1987, sch 1, art 15, permits the forum to apply its own laws to issues relating to the personal and proprietary effects of marriage. Except in the context of succession, there is no such saving for wider “family” obligations, akin to that used in the Rome Convention on contractual obligations. Disputes relating to trusts would therefore be subject to the Recognition of Trusts Act 1987, provided the court characterised the issue as a trust point, rather than simply as one of financial relief under the new statutory scheme (see commentary on C v C (Variation of Post Nuptial Settlement) [2003] EWHC 742 (Fam), [2004] Fam 141: R Bailey-Harris (2004) 34 Family Law 861.     [Back]

Note 55    See C v C (Variation of Post Nuptial Settlement) [2003] EWHC 742 (Fam), [2004] Fam 141.    [Back]

Note 56    The Inheritance (Provision for Family and Dependants) Act 1975 has its own limitation period: see 8.44.    [Back]

Note 57    For discussion about determining the date of separation, see paras 9.116 to 9.119.    [Back]

Note 58    In considering how to deal with such cases for the purposes of limitation, medical negligence cases provide an analogy. There, the claimant has the usual three years to issue a claim as they would have in any tort claim involving personal injury: Limitation Act 1980, s 11. However, that time runs either from the date on which the claimant’s cause of action accrued (generally, when the claimant sustained injury caused by negligent treatment), or the date on which he or she discovered (or, if earlier, the date on which he or she ought reasonably to have discovered) that he or she had sustained a significant injury attributable to negligent treatment: Limitation Act 1980, s 14.    [Back]

Note 59    Compare the usual limitation rules that apply to defences and counterclaims, discussed in Chitty on Contracts (29th ed 2004) para 28-122 and following.    [Back]

Note 60    See Part 4. Cf discussion in Wilson v First County Trust [2003] UKHL 40, [2004] 1 AC 816, at [161], per Lord Scott.    [Back]

Note 61    See J Mee, “Property rights and personal relationships: reflections on reform” (2004) 24 Legal Studies 414, at 447-449.    [Back]

Note 62    See 6.284: though if the new scheme were invoked, it would trump any counterclaim under the general law.    [Back]

Note 63    See para 3.11.    [Back]

Note 64    Advice regarding cohabitation contracts might sometimes be slightly qualified.    [Back]

Note 65    Note that the New South Wales and Scottish regimes applied retrospectively to relationships already in existence and continuing when the legislation came into force. We discuss the case of New Zealand below.    [Back]

Note 66    To secure compliance with respondents’ rights under the First Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms, art 1. It seems likely that the European Court of Human Rights would afford a wide margin of appreciation in this area.     [Back]

Note 67    Subjecting certain cohabitants of three years duration or with a child to the same regime as spouses (equal sharing of relationship property on separation and death, and ousting the operation of the general law in relation to relationships falling within the scheme): Property (Relationships) Act 1976, ss 2D, 2E and 4.    [Back]

Note 68    See in particular Parts 5 to 7, 10 and this Part.    [Back]

Note 69    For example, increased cost to individuals and to the public purse.    [Back]