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Southwell v Blackburn: A True Landmark Decision Or A Reminder Of Cohabiting Risks?

Wednesday, 10 December 2014

On 16th October 2014, the Court of Appeal upheld a decision that an unmarried man had to pay a lump sum to his ex-partner in respect of a property they both shared. While press reports labelled this a landmark decision for unmarried couples many practitioners take a different view, believing it reinforces the precarious position cohabitants are in.

Understanding the legal reasoning behind Southwell v Blackburn [2014]

In this case, Mr Southwell cohabited with Ms Blackburn for nearly 10 years in a property that was held in his sole name. When the relationship ended in 2012, Ms Blackburn and her two daughters were asked to move out of their ‘home for life’, effectively leaving them homeless. Ms Blackburn brought a claim against Mr Southwell for an equal share in the property.

Looking at evidence of the whole conduct of the parties, the judges concluded that it was ‘most unlikely’ that Mr Southwell would have made ‘any clear promise’ to Ms Blackburn to become an equal or in fact, any owner of the property. In turn, Ms Blackburn was unable to prove herself as a beneficiary, as there was no common intention for both parties to share the property. Therefore no constructive trust existed.

Ms Blackburn raised an alternative claim for proprietary estoppel. The fact that she gave up her secure tenancy and relied on a promise of a life-long secure home with Mr. Southwell was sufficient to raise unconscionability. The Court of Appeal highlighted that the claim was successful not on the particular promise, but due to the real detriment Ms Blackburn suffered by giving up her own home. The award of £28,500 was then calculated to restore Ms Blackburn back to her former position.

A note of caution for cohabiting couples

This is undoubtedly a noteworthy development in cohabitation law, moving further away from the restrictive use of indirect and direct contribution tests held in the landmark cases of Stark v Dowden and Jones v Kernott. It suggests that even where the courts will not focus on the nature of the relationship between parties they may still consider the criteria of detriment and reliance.

Nonetheless, the case illustrates how difficult it is for cohabiting couples to pursue cases successfully. The intricate and fact-specific issues that led to this award on the basis of proprietary estoppel are likely to be rare. Notably the court was not concerned about benefits arising between cohabitant couples during the course of their commitment but the application of specific legal principles centred on particular facts. This is hardly on a par with the broad legal rights married couples are entitled to rely upon following a breakdown in their relationship.


This case does little to dispel the uncertainty and precariousness of the position cohabitants are in. It gives further notice to unmarried couples of the need to ensure that they comprehend their legal rights before cohabiting and seek advice to best protect themselves. Cohabitants should not be taken in by the myth of common law marriage or rely on specific cases such as this for comfort. Cohabitation agreements are a far better way to set out the terms of your living arrangements and can help avoid future conflict if things do not work out in the long run.

For specialist advice contact contact Jeetesh Patel via e- mail or by telephone on 0207 611 4848.

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