Family Law

You may recall that last month we had a look at the recent case of Kernott v Jones which concerned a couple who, back in 1983, had bought a house in their joint names, with neither party acquiring a greater share than the other.  However, after a series of appeals, in which eight of the country's most senior Judges took opposing views, it was ultimately decided that Mr Kernott's half share be reduced to 10% whilst Ms Jones scooped the pool with 90%.    

How could this be?  By what legal slight of hand could equality be so transformed to the advantage of one and the detriment of the other?  And how will the ruling affect the millions of people who live together outside marriage in a jointly owned property? Unfortunately, the fact that the Law Lords themselves advanced different reasons for their findings does not make it easy to answer these questions.  Nevertheless, here goes… 

• Firstly, it was common ground that where property is owned jointly, there is a presumption that it is owned equally.  Pretty obvious, you may say but…
• Secondly, this presumption can be displaced if one party can establish that either at the time of purchase or at a later date, both owners, deep down in their heart of hearts, intended that they should own the property in unequal shares.   

But how on earth do you prove such an intention if the other party is adamant that, so far as he was concerned, nothing had altered since the date of purchase?    

Ms Jones asked the Court to accept that Mr Kernott's conduct clearly demonstrated an intention that his interest in the property should diminish.  So what did he do that should cause the Court to reach such a conclusion?  Well, he moved out of the house and made no attempt to return for the next thirteen years, did not pay the mortgage, surrendered a collateral life insurance policy and did not pay the household bills. 

Naturally, Mr K denied that he had any intention to reduce his interest in the property.  Indeed, the reverse; he said he was always conscious of the value of his interest and was doing Ms Jones a favour by allowing her to remain living there. But the Supreme Court would have none of it and insisted that his conduct demonstrated his true intentions.    

In addition, and to rub salt in his wounds, the Court ruled that once they had found that he had intended that the house would be owned in unequal but unspecified shares, they, the Judges, would decide what proportions would be fair, having regard "to the whole course of dealings" in the property.  They then plucked two figures out of thin air - 90% to Ms J and 10% to Ms K.  Why 90/10?  They did not say but no doubt Ms J will bless them forever and Mr K will spend the rest of his life sticking pins into wax effigies! 

So there is some hope for those who consider that basic property law does not provide justice for cohabiting couples.  But be warned, the road to justice is long, expensive and uncertain.  The better course for all those who live together is to record who owns what in a Cohabitation Agreement - short, inexpensive and (almost) certain.