The Government riposte that cohabitants should marry misses the point. All cohabitants need to be quite clear as to whether they have any beneficial interest in a property and how to secure it.
In Australia3 and New Zealand4 unmarried cohabitants' rights are recognised by legislation, common law and equity. The principle of unjust enrichment has been utilized in both these countries and Canada.5
Domestic duties alone have never sufficed in English law to found a claim for a beneficial share, whilst they do in Canada under the concept of the remedial constructive trust. Hence in Peter v Beblow6 a woman who cared for her own and her partner's children, did the housework and contributed money to the housekeeping was able to keep the house under a constructive trust on the basis that her partner would otherwise be unjustly enriched by her services. In Hammon v Mitchell7- an English case - a woman who did unpaid work for her partner, raised their children and maintained the home as well as supporting him in his speculative ventures failed to acquire any beneficial share. Remedial trusts are imposed where there is a direct link between substantial indirect contributions and the acquisition or improvement of property; otherwise compensation could be available on a quantum meruit basis. The 'trustee' has a duty to convey the property to the claimant who sues on quasi-contractual grounds
In order to establish an unjust enrichment claim there needs to be evidence of:
an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment.8
Examples of enrichment include household expenses9, domestic work and repairs and maintenance. The courts have not accepted willing assistance10. The contributions need to be both substantial and direct. Deprivation can be established by evidence that the other party has received a benefit.11 The rationale for the doctrine is said to be the defendant's awareness of the claimant's reasonable expectation of a proprietary interest. As in the fiction of common intention, the Canadian courts often impute reasonable expectation.12
The remedy is available regardless of legal status and therefore more closely reflects social reality. However it is a remedy of last resort; a proprietary remedy must also be shown to be justified. Damages are the norm.13 The requirement of 'absence of any juristic reason' would exclude gifts or loans, as in English law, but probably not requested services if the claimant clearly expected to receive something in return.14 The English approach is that the constructive trust is a substantive institution vindicating a pre-existing proprietary right.15 There is no principle of restitution of a benefit derived from wrongdoing. Proprietary