Kalaivani Jaipal Kirishani v George Major

Whether unmarried cohabitees intend to create legal relations is determined objectively. Cohabitation alone does not create a presumption against contractual intention. The court must examine the nature and characteristics of the relationship and the surrounding communications and conduct. A presumption may arise where the relationship has the domestic qualities associated with mutual trust and affection, but it is a presumption of fact, not law. It may be rebutted by sufficient evidence; no particularly high standard or special burden applies, although flimsy evidence will not suffice. A trial judge may apply the same reasoning to distinct domestic arrangements where the reasoning naturally extends to both and the judgment, read as a whole, adequately explains the conclusions.

The appellant and respondent were former cohabitees. The County Court dismissed claims for contributions to shared holiday and household expenditure and for unpaid sums said to be due for the respondent’s occupation of the appellant’s flat. The judge proceeded on the basis that arrangements between unmarried cohabitees attracted a presumption against an intention to create legal relations, and found that the presumption was not rebutted.

On appeal, the appellant argued that there was no such general presumption, that the judge applied too high a threshold for rebuttal, and that he failed to give adequate reasons for dismissing the rent claim. The central issues were the proper approach to intention to create legal relations in cohabitation arrangements and whether the judgment below adequately addressed both claims.

1. The appeal was dismissed. The judge below had erred in treating the application of the presumption as common ground, but that error did not determine the result. He had independently found, on the evidence, that the relationship possessed the domestic characteristics capable of giving rise to the presumption.
2. The label “cohabitees” is insufficient by itself. Cohabitation covers relationships ranging from marriage-like domestic relationships to arrangements based on accommodation or convenience. The relevant question is the nature of the relationship behind the cohabitation. The presumption arises, if at all, from the relationship’s characteristics, not from marriage, civil partnership or cohabitation as such.
3. The underlying inquiry remains objective. The court must assess what was communicated by words or conduct, viewed with the surrounding circumstances, to determine whether the parties intended legal relations and agreed the essential terms. The presumption supplies a prima facie answer only where the relationship’s characteristics justify it.
4. Rebuttal does not require particularly strong evidence or a specially high standard. The court requires sufficient evidence to move from the starting point; flimsy evidence will not suffice. Read in context, the judge’s references to “clear” or “clearest” evidence did not show that he had applied an erroneous test.
5. The reasons challenge also failed. Although the reasoning after paragraph 24 expressly referred mainly to the expenses claim, the judge’s conclusion concerned domestic arrangements generally. The heading, his reference to both claims, and the spreadsheets—which included rent entries—showed that the reasoning was intended to apply to the rent claim as well. Separate factual details did not require separate reasoning where the overarching reasoning naturally applied to both.

• High Court (Chancery Division): appeal from the County Court at Central London was dismissed.
• County Court at Central London: HHJ Gerald dismissed the Expenses Claim and Rent Claim by order dated 23 December 2024. The Investment Claim was allowed and was not appealed.