Cohabitation Law - Update

17-Oct-2011 Every family lawyer in the UK eagerly awaits the Supreme Court’s decision of Kernott –v- Jones [2010] EWCA Civ 578.

The circumstances of the case are that in 1985, Leonard Kernott and Patricia Jones purchased a property together in joint names with a joint mortgage. They lived at the property together for 8 years until 1993 when Mr Kernott moved out. Ms Jones remained living in the property with their two children and was solely responsible for paying the mortgage and expense without any contribution from Mr Kernott.

In 2006 Mr Kernott issued proceedings to realise his share of the property. Ms Jones argued that her interest, irrespective of the fact that the property was jointly owned, had increased since separation in 1993. She argued this on the basis that she had been solely responsible for payment of the mortgage and expenses etc.

In 2008 a County Court Judge agreed with her and awarded her a 90% interest in the property. The matter was heard again in the High Court following an appeal by Mr Kernott in which in July 2009 the court upheld the earlier decision. Mr Kernott further appealed to the Court of Appeal.

In May 2010 the Court of Appeal overturned the decisions of the lower courts and held that Mr Kernott had a 50% interest in the property, notwithstanding the time that had elapsed since the parties separated in 1993. Ms Jones thereafter referred the case to the Supreme Court which was heard in May 2011. Judgment is eagerly awaited.

Many cases of this nature which are currently being heard in courts all over the UK are being adjourned pending the judgment of this case. The decision will prove significant for all couples choosing to live together rather than marry or enter into a civil partnership. The case of Stack –v- Dowden four years previous provided some clarity with regard to cohabitees’ property rights and which established the presumption that interest in a property is defined by the legal ownership. Ms Jones seeks to overturn this presumption.

The big question the Supreme Court has to determine is whether or not it is fair to restrict a claim to property to the legal interest or whether, following separation, events should give rise to a different result? Also, should a court be able to infer what the parties intended and to use that inference as a means to decide that their actual interests in the property are different from the legal title?

The clear message for any cohabiting couple contemplating purchasing a property is to obtain legal advice. The situation in Kernott –v- Jones can be easily overcome by a Declaration of Trust that clearly records the intentions of the parties, thereby avoiding litigation further down the line in the event of the breakdown of the relationship.

For more advice in relation to cohabitation law contact Lisa Kemp.

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