May 26 2013 Latest news:
Ed Foss, Senior writer
Wednesday, May 4, 2011
The way property is divided up between unmarried couples after they split up could be set for a shake up and significant clarification as a result of a Supreme Court hearing.
That may not be the end result of the Kernott v Jones case, which was opened in the Supreme Court today, but family lawyers around the country, their clients and people choosing between marriage and simply living together will be keeping a close eye on the result and its ramifications.
It is a matter which impacts on thousands of people around the country and causes deep rifts between families.
The case has prompted another rallying call from experts who say the law relating to property interests of cohabiting couples is currently an “unsatisfactory muddle”.
Kernott v Jones was previously heard by the Court of Appeal in 2010. It concerned property jointly owned by two parties, Leonard Kernott and Patricia Jones.
Upon separation Miss Jones continued to live in the property and paid the mortgage and all outgoings. 12 years later Mr Kernott sought his half share of the equity in the property.
The Court of Appeal ruled the couple had intended to share the property equally despite Mr Kernott moving out, Miss Jones paying all the outgoings on the property for 12 years, and Mr Kernott having nothing to do with his share in the property for that period. Miss Jones has now appealed to the Supreme Court.
Meredith Thompson, a family law specialist at law firm Mills & Reeve, said: “The law relating to the property interests of cohabiting couples is currently an unsatisfactory muddle.
“It relies on an unholy mix of express and implied trusts, and in some circumstances enables a court to retrospectively infer what the parties intended as to the ownership even if they intended nothing of the sort.
“If the Supreme Court upholds The Court of Appeal’s decision that joint ownership means a 50/50 split, this will put a stop to the recent tendency of the courts to infer intentions of the property owners as to how they share the equity in property.
“This will amount to a strict interpretation of property law and an end to judges attempting to introduce some element of fairness into what can be a very harsh reality for some people.
“Alternatively the Supreme Court may support the original trial judge’s decision that the equity ought to be split 90pc in favour of Miss Jones who had paid the mortgage and all outgoings for the 12 years following separation.
“The original trial judge had inferred to the parties an intention that the beneficial interest in the property would be split that way.
“This follows the recent judicial trend to use the idea of ‘inferred intention’ to get around legally correct but morally unfair results.”
Clarification of the law was long overdue, added Miss Thompson.
“Will the Supreme Court grasp the nettle and support the move towards more fairness for unmarried cohabitants - something which successive governments have shied away from given the likely public backlash?
“Or will the Supreme Court stop the creeping development of law in this area and thereby leave cohabitants without a safety net?”
Neale Grearson, head of the family department at Hayes and Storr Solicitors, said: “This case shows what a mess the law is concerning couples living together who are not married.
“Such a couple do not have the same rights as a couple that are married and this must be remembered throughout.
“The worst common myth is that living together results in a couple becoming ‘common law husband and wife’ and with this they get rights.
“Without comprehensive new legislation people will still fall into the trap of thinking they have rights when they do not and that can be a very expensive mistake.”