Kernott v Jones

Article date: 05.08.11

* In a recent survey it was reported that in the 16-44 age group there were more cohabitating couples than any other type of relationship. At present, however, there are not as many financial remedies available to cohabitants as married couples. Nonetheless, cohabitants still end up in challenging financial situations when they separate just as married couples do on divorce.

The case of Kernott v Jones, which is currently before the Supreme Court, could have a significant impact on the financial remedies available to cohabitants. The judgment from that case is likely to be delivered within the next few weeks.

In 1985 the parties purchased a property in their joint names. Ms Jones paid the deposit, whilst Mr Kernott paid for an extension. The couple separated in 1993. Ms Jones and the parties’ two children remained in the property and Ms Jones paid the mortgage and all the household bills. In 2006, Mr Kernott claimed his 50% share in the property. The High Court awarded a share of 90% to Ms Jones but this was later overturned by the Court of Appeal. It is the decision of the Court of Appeal that is now being considered by the Supreme Court.

The Supreme Court will need to decide whether or not there was a common intention between the parties, whether express or inferred from conduct or even “imputed” (something that was rejected by the Court of Appeal) to depart from equality in relation to their equitable interests. The Supreme Court will also need to decide whether:

  • Ms Jones’ contributions to the mortgage and payment of the household bills should justify a departure from equality, and
  • Should such a departure be justified, what factors should be taken into account

Ultimately the Supreme Court will need to decide how far they can push the boundaries of the law in relation to joint property ownership. The Supreme Court may uphold the decisions of the High Court or Court of Appeal or make a completely different Judgment.

It is clear that this case is likely to alter the law relating to cohabitees. Prudent family law Solicitors around the country have therefore been advising their client’s to ‘wait and see’ what happens before any settlements are agreed.

In any event, it is important that anyone who intends to cohabit obtains legal advice before doing so and that they consider whether it is necessary to enter into a cohabitation agreement setting out what they would want their future financial arrangements to be. They also need to consider how any property should be held and how they can protect their financial contributions to such property.

Our team at Aldridge Brownlee LLP have experience dealing with all types of family law matters including disputes between cohabitees. Should you require assistance please do not hesitate to contact this firm.

* This is not legal advice; it is intended to provide information of general interest about current legal issues.