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"Claimant A lived with her other half for 19 years. She raised their two children, took his name. They presented as a married couple without actually marrying. Over the years, she put her all into making a home (albeit paid for by him), decorating it from top to bottom (twice), working part-time and otherwise supporting her man. Meanwhile his full-time career prospered. When they separated she had no assets of her own or any developed earning capacity. She brought a claim looking for some security in retirement but got nothing (except a penalising costs order).

"Claimant B lived with her partner for 24 years. They never married but pooled all their resources. While she was occupied full-time in raising children, he was occupied full-time making money. He also contributed towards his own pension scheme. When they separated she brought a claim against the assets built up during the relationship and succeeded. The judge said: 'Each of them had a different role. Each of them had a different responsibility. One is not greater or less than the other.' She even got a 25% share of his pension fund.

"When Claimant C separated from her unmarried partner after 22 years of cohabitation, her child-rearing responsibilities meant that she had accumulated just £34,000, whereas her partner had amassed about £830,000 working full-time. She too had changed her name to his by deed poll. She claimed against him and he was ordered to share with her a third of the overall assets. The judge said: 'I believe that society would now find it completely unacceptable that a person in the position of Mrs C should be left without any share in the property acquired during their relationship.'

"Claimant D and her four children (from a previous relationship) moved into the home of her new partner who had two children of his own. Over the course of their 12-year relationship, she worked part-time in the summer months, acted as mother and stepmother to the six children all year and, when she did have some spare time, undertook small bits of handiwork on his property. Generally she '& cooked, cleaned washed clothes and looked after the garden' while he worked full-time earning enough money to buy a houseboat and cabin cruiser in his own name. When they separated, she claimed against him saying that he had been become richer because of all the unpaid services she had performed. The court agreed and awarded her his house. One judge said:

"It seems to me that in a family relationship the work, services and contributions provided by one of the parties need not be clearly and directly linked to a specific property. As long as there was no compensation paid for the work and services provided by one party & then it can be inferred that their provision permitted the other party to acquire lands or to improve them."

Claimant A is of course easily identified as the English Mrs Burns, who came to grief in the Court of Appeal exactly 20 years ago, Burns v Burns [1984] FLR 216. Claimants B and C were, in fact, New Zealanders, Burney v Burney [1995] NZFLR 787 and Dickson v Dickson [1996] NZFLR 539. Claimant D was Canadian, Peter v Peblow (1993) 101(4) DLR 621. It can be seen that the ex-lover's jurisdiction of choice is most definitely not England. Indeed, since 1983 there has been no significant mitigation of those principles that caused the unfairness of the outcome for Mrs Burns. No direct challenge has been made to them and, as this article seeks to show, those litigants that have subsequently attempted to soften the edges of Burns have met with only limited success.

Practitioners working in this field in this jurisdiction know that this is not a trivial problem. The lack of effective remedies for those finding themselves at the end of a lengthy but unmarried relationship can often be profound. They are particularly acute in those cases where women have relegated careers behind the important tasks of raising children, supporting partners and making family homes. As a result they may have little or no independent economic muscle of their own. If they were lucky enough to be married then of course the Matrimonial Causes Act 1973 (MCA 1973) comes to their rescue, with its presumptions of capital equality, bolstering maintenance provisions and the hugely successful pension sharing provisions to protect in retirement. If they were unmarried then what can they realistically hope for? Certainly not periodical payments (save during any child's minority). Certainly not an equitable division of Peps, shares, Isas and other investments built up by the economically active partner in his sole name over the course of the relationship, and no pension sharing. The best they can probably hope for is maintenance via the Child Support Agency (CSA), the use of a reasonable house until the children are grown up and a maximum of 50% of the equity when it is then sold. Their married equivalents would consider such an outcome as derisory.

Might they also hope for a change in the law? Ever since Mrs Burns' case came to grief in 1983, there have been calls for statutory reform. Informally there is probably broad agreement amongst judges that the current regime discriminates unfairly against mothers and homemakers and needs radical change. However there may also be a consensus that the change required must come via Parliament. This article challenges the assumption that the only way forward is statutory reform. Statutory Reform

It is well over a year since the Law Commission report made no recommendations for a statutory homesharing law. In July 2002, the Law Society proposed:

(1) that same-sex couple should have the option of qualifying under an equivalent of the 1973 Act on relationship breakdown by 'opting in' to a statutory scheme; and

(2) an 'opting out' statutory scheme for unmarried cohabitants whereby a diluted 1973 Act would regulate property rights on relationship breakdown.

The government has shown a willingness to support such a scheme for same-sex couples, but to date there is still nothing on the horizon for cohabitants. The politics of supporting unmarried rights somehow seem to militate against statutory reform. Yet these same issues have not proved an obstacle in rival common law jurisdictions. In New Zealand, Australia and Canada there has been a judicial freedom and willingness to apply the law in such a way as to remedy the injustices in our own principles. It is surely highly relevant to ask how it is that these other jurisdictions have achieved this development?

In Lloyds Bank v Rossett and Another [1991] 1 AC 107, Lord Bridge of Harwich made abundantly clear the necessity for a 'direct financial contribution' to justify the imposition of a constructive trust in circumstances where an express agreement to share the asset could not be demonstrated. He said:

'In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do.'

That case followed the decision in Burns and, in particular, the comments made by Fox LJ when faced with 19 years of child raising and home making contributed by Mrs Burns:

'It is true that she contemplated living with the defendant in the house and, no doubt, that she would do the housekeeping and look after the children. But those facts do not carry with them any implication of a common intention that the plaintiff should have an interest in the house. Taken by themselves, they are simply not strong enough to bear such an implication.'

And in considering Mrs Burns' performance of domestic duties (ie raising children and years of supporting her full-time working partner and making a family home), Fox LJ commented thus:

'I think it would be quite unreal to say that, overall, she made a substantial financial contribution towards the family expenses. That is simply the factual position.'

Contrasting the language in Burns with the comments made in cases BD is stark. It looks even starker when set alongside other comments made by commonwealth judges, such as:

'& the foundation for the imposition of a constructive trust & is that a refusal to recognize the existence of the equitable interest amounts to unconscionable conduct and ... the trust is imposed as a remedy to circumvent that unconscionable conduct' (Baumgartner v Baumgartner [1987] 164 CLR 137 at p 147)

'I would allow as a contribution any payment or service by the claimant which either (1) of itself assists in the acquisition, improvement or maintenance of the property or its value or (2) by its provision helps the other party acquire, improve or maintain the property or its value. To make a rigid cut off at direct contributions & is to ignore the realities of life &' (Lankow v Rose [1995] NZFLR 1, per Tipping J at p 20)

'& in a quasi-marital relationship & the choice between a monetary award and a constructive trust will be discretionary and should be flexibly applied.' (Peter v Peblow, per Cory J at 640)

'The notion that household and child care services are not worthy of recognition by the courts fails to recognize the fact that these services are of great value, not only to the family but to the other spouse'... 'It is precisely where an injustice arises without a legal remedy that equity finds a role.' (Peter v Peblow, per McLachlin J at pp 647648)

These are not cases decided in banana republics dealing in palm-tree justice. Each jurisdiction has developed remedies to resolve the problems presented by the break-up of unmarried partners. They are more willing to undertake a more flexible allocation of resources upon breakdown and the results are not alarming. There is no discernible presumption of equality of asset allocation in their decisions merely a willingness to adjust property rights to reflect the parties' respective contributions.

A WAY FORWARD

Although unable to recommend a statutory reform, the Law Commission was able to recommend that the courts adopt a wider view of the type of 'contributions' that would be acceptable to found a common intention. Indeed the 'indirect' contribution to the mortgage has already received judicial approval in Le Foe v Le Foe and Woolwich Plc; Woolwich Plc v Le Foe and Le Foe [2001] 2 FLR 970, albeit not at Court of Appeal level. That contribution remains financial in character, however, and Mrs Burns' contribution was primarily non-financial. There are glimmers of hope for any modern-day Mrs Burns hoping for courtled change. Helpfully there has been a steady rise in the status of unmarried cohabitants, traceable through the 1995 reform of the Inheritance (Provision for Family & Dependents) Act 1975, s 1 (1), through cases such as Fitzpatrick v Stirling Housing Associaton Ltd [2001] 1 AC 27 and into the Adoption and Children Act 2002. The latter now permits adoption by (unmarried) couples living in 'enduring family relationships'. Furthermore, the Court of Appeal's reliance (in part) on recent Australian authority in Lambert v Lambert [2003] EWCA Civ 1685, [2003] 1 FLR 139 helped to justify a departure from its earlier decision in Cowan v Cowan [2001] EWCA Civ 679, [2001] 2 FLR 192. Might this presage a willingness to adopt a more Southern Hemisphere approach in the area of cohabitants?

Finally Thorpe LJ spoke recently on cohabitants to a meeting called by the Society of Labour Lawyers. In doing so, he regarded the outcome in Burns as an 'injustice' and notably described the following dictum of Lord Denning MR as 'surprisingly modern':

'It depends on the circumstances and how much she has contributed not merely in money but also in keeping up the house and, if there are children, in looking after them.' Hall v Hall (1982) 3 FLR 379, at p 381F.

Perhaps then the time is right for the courts to reconsider the parameters laid down in Burns. That there is a social need for change cannot seriously be disputed. Recent statistics show us that one in six adult men and women are cohabiting in opposite-sex relationships. The latest figures for live births show that nearly 40% of births were to unmarried mothers and 80% of births outside of marriage are now registered by both parents.

The radical solution would be to tear up Burns, treat Rossett as being of historical interest only, and introduce a wider test for the triggering of a constructive trust. A less dramatic judicial reform might be found in the emergence of proprietary estoppel as a remedy of increasing flexibility. Although none of the commonwealth jurisdictions have developed this particular remedy, it is interesting to note that each has arrived at a similar judicial destination but by adopting markedly different equity-based routes. (New Zealand developed the notion of 'legitimate expectation', Australia relied on 'unconscionable conduct' and Canada notions of 'unjust enrichment'). The common element of their approach seems to have been to move the focus of judicial attention away from the excessively doctrinal requirements of established equitable principles and towards an approach concentrating on an assessment of the core (un) fairness of the human transactions before it. The result has proved much the same in each case, namely:

"a willingness to recognise indirect and non-financial contributions as giving rise to interests in property acquired by the parties during the relationship;

"an unwillingness to discriminate against child-raising and home-making in favour of wealth-generating activity; and

"a flexibility of award beyond the familiar orders for sale and division of proceeds e.g. lump sum awards to reflect interests in assets other than just the parties' home, life interest awards and, occasionally, even pension sharing orders.

WHY PROPRIETARY ESTOPPEL?

Applying proprietary estoppel in this area is not a new idea. In Coombes v Smith [1987] 1 FLR 352 an unmarried mother gave up work to raise the parties' daughter and lived in a number properties provided by the father. In the event they never lived together but, throughout the relationship, he had promised to put a roof over her head and that he would 'always provide for her'. When the relationship broke down however he sought her removal from the property (upon their daughter reaching 18) and a termination of any financial responsibility towards her. He succeeded. The claimant's failure in Coombes was rooted in the court's determination to apply the detailed criteria relating to estoppels set down by Fry J in Willmott v Barber (1880) 15 ChD 96. These do present obstacles for future cases and, if this jurisdiction is to be applied according to the detailed criteria of the nineteenth century cases, it is likely that the thinking in Coombes will prevail. However, the author questions whether this is necessary. The equitable jurisdiction is highly flexible and can be developed to meet changing needs. Both historically and more recently, judges have resisted attempts to lay down rigid criteria limiting equitable relief. Goff J refused to allow estoppel to be excessively defined stating '& it cannot be right to restrict equitable estoppel to certain defined categories' (Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank [1982] 1 QB 84, at 103 D). Likewise Oliver J refused to support the doctrinal thinking of Willmott v Barber stating:

'the more recent authorities & seem to me to support a much wider equitable jurisdiction to interfere in cases where the assertion of strict legal rights is found by the court to be unconscionable.'

Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd; Old & Campbell Ltd v Liverpool Victoria Friendly Society [1982] 1 QB 133. The language in these cases was applied to commercial situations but echoes the language of the commonwealth judges dealing with de facto relationships.

More recently in the well known decision in Gillett v Holt and Another [2000] 2 FLR 267 the Court of Appeal upheld a sizeable lump sum award to reflect promises of inheritance made to a claimant that were made over the course of a thirty year relationship but from which the defendant sought to resile at the time of relationship breakdown. Again the context was commercial but the judgment uses the general language of relationship breakdown:

'Mr Gillett and his wife devoted the best years of their lives to working for Mr Holt and his company, showing loyalty and devotion to his business interests, his social life and his personal wishes on the strength of clear and repeated assurances of testamentary benefits.'

There is much in Gillett that could lend support to a court seeking to find a way out of the strait-jacket of Rossett and Burns. There is an acknowledgement that equitable remedies must remain flexible and that the courts must guard against anyone seeking to impose doctrinal analysis upon them. Gillett also permits lump-sum relief to reflect interests in assets other than the claimant's home. Moreover there is recognition of the point that detriment by a Claimant should be judged not at the time of the original promise but at the time of relationship breakdown (to be contrasted with the decision in Coombes).

To found a cause of action in proprietary estoppel it will be necessary for a claimant to demonstrate that clear promises or assurances were made to her over the course of the relationship and that she relied upon these promises rather than entering or continuing the relationship out of natural love and affection. These conditions are not trivial and claimants can quickly find themselves in a 'no-win' position. If they assert that they only continued in a relationship on the strength of representations about future property interests they look like gold-diggers. If they say it was all down to love they find that their case fails and get nothing but a costs bill. Very recently, in Lissimore v Downing [2003] 2 FLR 308, Miss Lissimore learned these realities only too clearly. Her relationship with ex-rock star Mr Downing was childless, relatively short and no significant property was acquired over the course of it. Nevertheless during it Miss Lissimore allged that she was given many assurances by the wealthy Mr Downing, including that 'she would never want for anything', 'he would take care of her', 'he had looked after his other girl-friends and she would not be different'. Moreover he also declared her to be 'Lady of the Manor'. She gave up work over the course of the relationship and spent rather than invested a lump sum received following her divorce from her earlier marriage.

The judge dismissed her claim. In doing so he held that the bulk of the alleged assurances could not support an estoppel claim because they did not relate to specific property. However, does that finding not place too heavy a burden on such cases? Men don't necessarily reassure their partners or the mothers of their children by referring to specific items of property. Is it not time that the law reflected the way in which assurances are actually given and acted on by couples rather than insisting that such assurances (and any reliance conduct that follows them) somehow conform to precedent? Lissimore acts as a timely reminder of the hazards that lie in wait for litigants choosing to pursue remedies via proprietary estoppel. However the absence of both children and property developed during the relationship mean that Miss Lissimorre was not a Mrs Burns. It will surely be unusual if parties make a home together, start and then raise a family and live together for many years without there being reasonably clear assurances being made as to the their future financial security?

CONCLUSIONS

We are in a time of great change in property-based family law. The landscape of Ancillary Relief has recently altered beyond all recognition. Very recently, the Court of Appeal in Re P (A Child) [2003] EWCA Civ 837, [2003] FLR forthcoming has shown a willingness to loosen the limitations of relief in MCA 1973, Sch 1 cases for unmarried mothers. And yet the core unfairness of Mrs Burns' case endures. Every year that elapses without progress in this area surely sees hundreds, possibly thousands, of cases of unfairness going without a remedy. The holy grail of statutory reform has proven elusive. Indeed the New Zealand experience suggests that incremental progress through judicial decisionmaking helps to pave the way for a subsequent comprehensive statutory reform for cohabitants. Proprietary estoppel might prove to be the vehicle for judge-led changes to mitigate the unfairness in the present law. After Gillett the door was now ajar. Lissimore makes it clear that opening it further may not be straightforward but other recent decisions (Jennings v Rice [2002] EWCA 159, Chan Pui Chun v Leug Kam Ho [2002] EWCA Civ 1075) had added to the momentum started by Gillett rather than slowing it. Surely further change cannot be far away?

'Promises, Promises', Burns V Burns Twenty Years On