In the recent case of Kirishani v Major [2025] EWCA Civ 1134, the Court of Appeal of England and Wales considered when financial arrangements between cohabitants may be legally binding.
The Court confirmed that the presumption against an intention to create legal relations, traditionally applied in the context of spouses and family members, may also apply to unmarried cohabiting couples where the relationship displays the same characteristics of mutual trust, affection, and domesticity. Whether an agreement is enforceable will depend on the nature of the relationship and the evidence that the parties intended to create legal relations.
Written by Aurora Chan, Legal Assistant
Background
Ms Kirishani and Mr Major entered into a relationship and cohabited from 2016 until their separation in 2018.
During the relationship, Ms Kirishani paid many of the couple’s shared expenses, most significantly the costs of their holidays together. She was employed and financially supported their lifestyle, while Mr Major had limited funds. She kept records of her expenditure in spreadsheets, which she regularly sent to him after trips, but she did not demand immediate repayment. There was also an informal agreement that the couple would contribute equally to expenses when going on holiday.
After the couple separated in 2018, Mr Major continued living at the property as Ms Kirishani was often away. Ms Kirishani subsequently brought a claim for £20,000 in expenses, largely comprising expenditure on holidays and trips. She also claimed £16,000 in rent for the period during which Mr Major had occupied her property without paying rent despite agreement that he would pay £1,000 per month.
The Legal Position
Presumption against Intention to Create Legal Relations
English law generally presumes that agreements made in a domestic or familial context are not intended to be legally binding. This reflects the view that family and personal relationships are ordinarily domestic matters which should not be governed by the law. However, the presumption can be rebutted by evidence that the parties intended their arrangement to be legally enforceable.
This principle was established in Balfour v Balfour [1919] 2 KB 571, where a husband’s promise to financially support his wife was held not to be legally enforceable. It was later extended to apply to arrangements between parents and children in Jones v Padavatton [1969] 1 WLR 328, where arrangements between a mother and daughter concerning financial support and accommodation were held to be familial arrangements rather than legally binding contracts.
Cohabitation Rights
In England and Wales, cohabiting couples do not have the same legal rights and protections as married couples or civil partners, nor are they afforded the same special legal status. Generally, financial disputes between cohabiting couples are governed by property, trust, or contract law rather than the specialist statutory framework that applies to spouses and civil partners under family law. Historically, the presumption was applied to cases involving spouses and family members, and its application to cohabiting couples had not been clearly established before Kirshani v Major.
The Judgment
The trial judge held that Ms Kirishani had knowingly paid the majority of the couple’s expenses, despite being aware that Mr Major lacked the means to reimburse her. She had continued to book and pay for holidays without demanding repayment or threatening to stop arranging them. She only demanded repayment after their separation.
In this context, the judge concluded that the parties’ understanding that they would contribute equally to holidays was an informal domestic arrangement and was not intended to be legally binding. Neither party could have sued or brought legal proceedings against the other during the relationship. While there may have been a general expectation that Mr Major would eventually contribute or reimburse Ms Kirishani, this arose in the ordinary course of an intimate relationship and did not amount to an intention to create legal liability.
In reaching that conclusion, the judge applied the presumption against an intention to create legal relations, finding that it could apply equally to couples in relationships where there was nothing to suggest otherwise.
The trial judge further stated that courts should not intervene in intimate cohabiting relationships unless there is clear evidence to the contrary.
The Appeal
The Court of Appeal granted permission to appeal on three grounds:
- Whether the judge was wrong to apply the presumption against an intention to create legal relations to a cohabiting couple;
- Whether the judge had wrongly set the threshold for rebutting the presumption too high; and
- Whether the judge had wrongly dismissed the claim for rent.
Application of the Presumption to Cohabitants
The High Court upheld the trial judge’s approach and stated that the key issue is the substance of the relationship, rather than the label attached to it, whether the parties are married, in a civil partnership, or cohabiting. The presumption arises because certain domestic relationships are governed by mutual trust and affection rather than commercial dealings. The Court recognised that some cohabiting relationships may demonstrate the same characteristics, thereby justifying the application of the presumption, although whether it applies in each case will depend on the particular circumstances of each relationship.
In this case, the Court agreed that Mr Major and Ms Kirishani’s relationship displayed the necessary characteristics, and the trial judge was entitled to apply the presumption.
Rebutting the Presumption
The Court accepted that the trial judge had overstated the threshold required to rebut the presumption by referring to “the clearest of evidence” and “the clearest of circumstances”. The correct threshold requires evidence “of some force”, but is not particularly high. Nevertheless, the trial judge had broadly applied the correct legal principles despite his wording, and his conclusion was upheld.
The Rent Claim
The Court dismissed the rent claim on the same basis that the agreement for Mr Major to pay rent was not intended to be legally binding.
Implications
This is a key development in the law relating to cohabiting couples. The High Court confirmed that the presumption against an intention to create legal relations is not limited to married couples but may also apply to cohabitants where their relationship is characterised by the same elements of mutual trust and affection.
This judgment also reflects a broader trend towards giving greater legal recognition to cohabiting relationships. Law Commission reports and ongoing government consultations have highlighted the growing number of cohabiting couples and the need to consider whether further legal rights and protections should be extended to them.
At the same time, the decision does not place cohabitants on the same legal footing as spouses or civil partners. The Court did not establish a general rule that the presumption applies to all cohabiting relationships. Cohabitants would still need to prove that the specific circumstances and nature of their relationship display the required qualities of mutual trust and affection.
The Court also clarified that the proper threshold for rebutting the presumption requires clear and persuasive evidence. The burden should not be exceptionally high, but it also cannot be discharged lightly.
How we can help
Cohabiting relationships can be difficult to navigate due to the uncertain legal landscape and the limited guidance available. If you’re unsure when your cohabitation agreement is legally binding, we can assist with:
- Claims arising from financial contributions during a relationship;
- Property or financial disputes between cohabitants;
- Drawing up cohabitation agreements to protect both parties’ legal positions;
- Preparing trusts or deeds of gift to clearly record whether there is an intention to create legal relations.
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