Family Law

Charlotte Sanders, Assistant Solicitor, Vardags
Beatrice Carro, Trainee, Vardags

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The recent court of appeal case of Southwell v Blackburn [2014] EWCA Civ 1347 has been heralded by the media as a landmark ruling, whose result ‘could open the floodgates'. In fact, it is more apt to say that the case merely adopted the less original Victorian doctrine of proprietary estoppel. Indeed, the old doctrine of proprietary estoppel is still used to deal with a modern issue: cohabitation. This is a particularly hot topic as Parliament looks to pass the Cohabitation Rights Bill to protect cohabitees, who have long been relying on this grey area of the law and now seek a more reliable and certain alternative.

Proprietary Estoppel

In short, proprietary estoppel arises most commonly when the owner of a property causes another to act to his/her detriment in the belief that he/she will obtain an interest in the property. Three main factors must be established, as clarified in the case of Thorner v Major [2008] UKHL 55:


In addition to the above three factors, a feature that permeates throughout, and it must be noted that these factors are intertwined and not disparate in any event, is unconscionability. One cannot take advantage of the other and deny him/her of the right they expected to have.

If these factors are established, the burden of proof shifts to the defendant to demonstrate that the claimant did not rely on the assurances (Coombes v Smith [1987] 1 FLR 352).

Southwell v

The case involved an unmarried couple; Miss Blackburn was 40 and had two daughters aged 11 and 12, and Mr Southwell who was 41. They decided to move in together in 2002. Miss Blackburn helped select the property, but Mr Southwell bought the house in his sole name, with a mortgage of approximately £100,000 and equity of approximately £140,000 from his previous home. When the relationship broke down in 2012, Mr Southwell changed the locks at the property. Miss Blackburn applied to the court for an equal share of the property.

Miss Blackburn asserted that the couple intended to purchase the house together and that she would be an equal owner. Miss Blackburn’s understanding was that the property would later be transferred into joint names. Mr Southwell denied this; he argued he had simply agreed to provide Miss Blackburn with a home for as long as their relationship would last.

First Instance Decision

The first instance judge, HH Judge Pearce-Higgins QC, rejected Miss Blackburn’s claim to be a beneficiary of a constructive trust, as there was no evidence of a clear promise that she would become an equal owner of the property. The judge did, however, uphold her alternative claim of proprietary estoppel, because Mr Southwell had assured Miss Blackburn that she would have a secure home and she had given up her own accommodation in reliance on that promise.

The judge valued her claim at £28,500 (calculated by looking at what Miss Blackburn had lost financially and adding inflation) and ordered Mr Southwell to pay her this sum to put her back in the position she was in before she gave up her house to live with him. Mr Southwell appealed.

Court of Appeal Decision

The Court dismissed the appeal. The Court supported the first instance judge’s findings that there was in fact an assurance, as Mr Blackburn had assured Miss Southwell that she would have a home with him: 'she would always have a home and be secure in this one'. The judge stated that 'the discussions they had were not specific as to ownership of the home they were moving into. They were specific as to the nature and extent of his commitment to her and the provision of secure accommodation for her.'

The parties had discussed the move and its consequences. Mr Southwell made promises that persuaded Miss Blackburn to move and give up her independence and security, with the intention she would rely on those assurances.

Miss Blackburn acted to her detriment as she left her secure home: 'without such promise and assurance [Miss Southwell] would not have given up her house and moved in with him'. In short, the judge considered that the Miss Blackburn was taking a big risk, moving from a secure rented home on which she had spent considerable sums, leaving her job and moving her children. Without Mr Blackburn’s assurances, she would not have moved and given up her secure home.

The judge also stated that it would be unconscionable for Mr Blackburn to retract from his promise and not return Miss Blackburn to the position she was in before she gave up her house.

Impact on the law

It can be seen from the reasoning in this case that no new principles were expounded, and that it is neither a landmark case nor will it open any floodgates. Rather, the court merely applied the old equitable principles to a modern relationship. In the case of Southwell v Blackburn it was less the legal principles of proprietary estoppel that were in dispute, but rather the facts of the case and the quality of the evidence.

That said, with the rise in couples cohabitating instead of marrying, and the ever present myth of a ‘common law marriage’, it is an important reminder of the legal position for cohabitees.

The case highlights the potential liability that may arise if a relationship with a cohabitee turns sour. In Southwell v