High Court clarifies when domestic arrangements between cohabiting partners are contractually enforceable
Kalaivani Jaipal Kirishani v George Major: no automatic presumption for cohabitees as a class
Introduction
In Kalaivani Jaipal Kirishani v George Major [2026] EWHC 835 (Ch), Sir Anthony Mann dismissed an appeal arising from two failed County Court claims between former cohabiting partners. The appeal concerned a claim for contribution to shared expenditure, principally holiday and trip costs, and a claim for monthly payments said to be due for Mr Major’s occupation of Ms Kirishani’s flat. The decision is significant because it makes clear that there is no automatic rule that all cohabiting couples fall within the ordinary domestic presumption against an intention to create legal relations. The inquiry remains objective and intensely fact sensitive. On the findings made at trial, however, this particular relationship was one in which the judge was entitled to conclude that the parties’ arrangements rested on trust and affection rather than contractual intention.
Factual background
Ms Kirishani and Mr Major entered into a relationship in mid 2016 and lived together in Ms Kirishani’s flat until 14 October 2018, when the relationship ended. Mr Major nonetheless remained in the flat for a considerable time thereafter, largely because Ms Kirishani was away travelling and was not spending much time there.
The proceedings had an unfortunate history. An earlier trial had already been set aside because of incapacity and litigation friend issues, so the decision under appeal, given by HHJ Gerald in the County Court at Central London on 23 December 2024, followed a second trial.
Three monetary claims were advanced below. The first was an investment claim for £8,888 said to have been given to Mr Major to invest. That claim succeeded, the judge having found that repayment had clearly been agreed, and it was not the subject of the appeal.
The appeal concerned the other two claims. The Expenses Claim, said to be approximately £20,000, represented Ms Kirishani’s net expenditure, principally on holidays and trips taken by the couple during their relationship. The trial judge found that there was no particular agreement about equal contributions at the outset of the relationship, but that matters developed so that each was expected to contribute equally when they travelled together. Ms Kirishani kept spreadsheets recording expenditure and sent them to Mr Major, who on occasions amended or corrected them. Importantly, however, her pleaded case of an express agreement made on 3 October 2016 was not maintained in oral evidence.
The Rent Claim concerned an arrangement from June 2017 under which Mr Major was to pay £1,000 per month for occupying Ms Kirishani’s home. He paid three monthly instalments but no more. By the end of the relevant period, the unpaid sum was found to be £16,000. On one occasion, Mr Major himself added those rent figures to the spreadsheet.
The judge also made broader findings about the relationship. It began as a happy relationship in which both parties hoped for marriage and perhaps children. Ms Kirishani knew from the outset that, for a time at least, she would have to carry Mr Major financially because she was in regular paid employment and he was not in funds. Even after the disparity in expenditure became marked, she continued funding the trips. There was no evidence that equal contribution was treated as essential to the relationship, or that she said there would be no further trips unless payment was made. During the relationship the spreadsheets were not accompanied by demands for payment. The judge regarded Mr Major’s acceptance that he should repay sums as reflecting an obligation of honour arising in the relationship, not a legally enforceable undertaking.
The issues before the court
The appeal raised three principal issues. First, had HHJ Gerald erred in treating the ordinary domestic presumption against an intention to create legal relations as applicable to an unmarried cohabiting couple? Secondly, had he overstated the evidential burden required to rebut that presumption by referring to the need for the clearest evidence or the clearest circumstances? Thirdly, had he failed to give adequate reasons in relation to the Rent Claim, given that much of his express reasoning focused on the holiday expenditure and the spreadsheets?
The court’s reasoning
No automatic presumption for cohabitees as a class
Sir Anthony Mann began with the familiar domestic arrangement authorities, including Balfour v Balfour and Jones v Padavatton. Those cases show that some family or domestic arrangements are not intended to be legally binding. But the important point was that the presumption described in those authorities is a presumption of fact, not of law. It derives from ordinary experience of relationships founded on mutual trust and affection.
That analysis led to the central correction made by the High Court. The mere fact of cohabitation is not enough. The label “cohabitees” can describe a wide range of arrangements, from relationships closely resembling marriage to people sharing accommodation for convenience. It was therefore wrong to say that all cohabiting couples, simply because they are cohabiting, fall within the domestic presumption. The correct approach remains the ordinary objective one: the court considers what the parties communicated by words and conduct and asks whether, viewed objectively, they intended to create legal relations.
On that point the reasoning below was flawed. HHJ Gerald had proceeded on the footing that there was no suggestion before him that the domestic presumption did not apply between an unmarried cohabiting couple. That was not correct. Ms Kirishani’s case below had in fact denied any special rule or presumption for cohabitees as such.
That flaw did not, however, alter the outcome. The High Court held that the judge below had gone on to make factual findings about the actual relationship before him. Those findings were capable of bringing this case within the kind of intimate domestic setting in which the presumption may properly operate. The relationship had been found to be happy at the outset, hopeful of marriage, and grounded in trust and affection. The judge was entitled to conclude that, during the currency of that relationship, it would have been unrealistic to suppose that either party contemplated suing the other over holiday contributions or occupation payments.
The evidential burden was not wrongly applied in substance
The court then considered the complaint about the standard required to rebut the presumption. Sir Anthony Mann accepted that phrases such as “the clearest of evidence”, read literally, risk overstating the position. The authorities do not impose some exceptional or heightened burden. What is required is evidence of sufficient force to displace the factual starting point. Flimsy evidence will not suffice, but nor is there a special legal hurdle.
Read fairly and in context, however, the ex tempore judgment below had not in substance applied the wrong test. Taken as a whole, it asked the right objective question and treated the need for clear evidence in an acceptable sense. Ground 2A therefore failed.
The reasons were adequate for both the Expenses Claim and the Rent Claim
The reasons challenge also failed. Although the detailed reasoning after paragraph 24 of the County Court judgment referred more expressly to the Expenses Claim, Sir Anthony Mann held that the judge’s analysis was intended to apply to both claims. The heading of the section referred to both the second and third elements of the claim. The concluding sentence of paragraph 24 referred to both the expenditure and the rental arrangement. The overall conclusion was that this was not a relationship in which the parties intended legal consequences for domestic financial arrangements.
In addition, the spreadsheets later included the rent entries as well as the holiday expenditure. In those circumstances, although the Rent Claim was not analysed separately in a distinct block of reasoning, the judgment remained intelligible and the reasons were legally adequate. Ground 2B also failed.
The decision
The appeal was dismissed. The dismissal of the Expenses Claim and the Rent Claim therefore stood. The separate Investment Claim, in which repayment had been clearly agreed, remained undisturbed.
Conclusion
The most important point is that the High Court rejected any simple status based rule for cohabiting couples. Cohabitation does not, without more, automatically attract the domestic presumption against contractual intention. Future cases must therefore turn on the actual nature of the relationship and the objective significance of the parties’ words and conduct.
At the same time, the decision shows how difficult it may be to establish a contract within an intimate domestic relationship where arrangements evolve informally and are never treated as immediately enforceable. Spreadsheets, acknowledgements of indebtedness, and broad expectations of later repayment may still fall short if the surrounding facts show that the parties were operating on trust, affection, and informal accommodation rather than legal obligation.
The contrast with the unappealed investment claim is instructive. That claim succeeded because repayment had clearly been agreed. The failed claims were different because the court treated them as part of the ordinary financial give and take of the relationship. For parties and advisers alike, the practical lesson is straightforward. If cohabiting partners intend occupation payments, shared expenditure, loans, or reimbursements to be legally enforceable, the arrangement should be recorded clearly and in terms that distinguish it from the ordinary incidents of domestic life.
The case also illustrates an appellate point. Even where a trial judge states the law too broadly, an appeal may still fail if the judge’s factual findings independently support the result reached. Where the central issue is the character of a relationship, the trial judge’s evaluation of the evidence will carry considerable weight.
Further Reading
- Cohabitation Property Disputes: Constructive Trust & Beneficial Ownership
- Can a family carer be paid from the estate? Rogers v Wills [2025] EWHC 1367 (Ch)
- Private Client Services
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Disclaimer: This article is provided for general information purposes only and does not constitute legal advice. Carruthers Law accepts no responsibility for any reliance placed on the contents. This article may include material from court judgments and contains public sector information licensed under the Open Justice Licence v1.0.