A Caribbean conundrum – A reminder for unmarried cohabiting couples who own properties and assets together

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When unmarried couples separate it can be difficult to deal with any properties they own as the law relies on quite complex property and trust law principles. Thus far, the thinking had been that family homes would be treated differently to investment properties, but the recent case of Marr v Collie [2017] brings this into question.

The previous case of Stack v Dowden [2007] held that the starting point for any property will be the legal title. Consequently, if a property is jointly owned it will be presumed, in the absence of any express written declaration to the contrary, that the property is owned in 50:50 shares. Likewise with a property which is owned in one partner's sole name, it will be presumed that that the legal owner is entitled to 100% of the property.

If one of the partners wishes to deviate from the legal title they will need to show that there was a common intention that they intended to share the property in shares which differ from the legal title, and the court has to consider such factors as their financial contributions to the property and outgoings, how they arranged their finances, who was responsible for the mortgage, what discussions they might have had about their shares in the property and so on.

Investment properties had previously been treated differently, and were looked at using resulting trust principles in the absence of any express declaration as to ownership. Essentially, this would mean looking at the financial contributions of each partner only to work out their respective shares. This is a mathematical approach, as each person essentially gets out what they have put in. 

The recent case of Marr v Collie [2017] was a Bahamas case and concerned a couple's dispute over five real estate properties which were in their joint names, a truck in joint names and a boat registered solely in Mr Collie's sole name. The properties, truck and boat had all been funded by Mr Marr. The two men had been in a personal relationship from 1991 to July 2008.

After failed negotiations to settle matters Mr Marr applied to the Supreme Court of the Bahamas. He sought a declaration that all of the properties, the truck and the boat should belong solely to him. Ultimately the case was appealed to the Privy Council in London, the ultimate appeal court for several Commonwealth countries. In the Privy Council's judgment it was held that the resulting trust principles should not exclusively govern the ownership of investment properties, and the factors taken into consideration with family homes should also be taken into account. The court found that further investigations were needed to try to find out the parties' true intentions as to the ownership of the properties, boat and truck.

This case serves as a reminder that it is always advisable for unmarried couples to set out clearly their intentions regarding the ownership of properties they live in, or buy together, in a written declaration and by putting in place a living together agreement.