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Jones v Kernow – important case on property split after separation of unmarried couple
16 November 2011
A recent case in the Supreme Court, briefly reported by us last week, of Jones-v-Kernow reminds us why unmarried couples who purchase property must set out their intentions when they purchase the property and also when they separate rather than sit back and do nothing.
What happened?
Mr Kernow and Mrs Jones purchased a property together in 1985. They made no written or other indication as to their shares in the property. They split up in 1993 and Mrs Jones remained in the house with their two young children. Mr Kernow paid nothing towards the property or the mortgage from then. In 2007 Mr Kernow declared an interest for his share.
Court Decisions
The original County Court judge split the equity in the property 90/10 in Mrs Jones’ favour. This was because although the parties agreed that the owned the property 50/50 in 1993 at the time of separation, the Court said that their intentions changed as their lives diverged.
The Court of Appeal disagreed and said there was no changed intention as the parties had not discussed the issue.
So it ended in the Supreme Court and they said that it did not matter that the parties had not discussed it; the Court will impute an intention if the circumstances dictate that it is fair.
This leaves an unclear position for couples with the Courts having high discretion depending on the circumstances.
How to prevent this situation
It is fair to say that in 1985 solicitors did not get their clients to consider the issue of joint ownership as often as they do now.
Your conveyancing solicitor should advise you to enter into a Trust Deed or Declaration of Trust which sets out who gets what in the event of a sale or indeed on the death of one of the parties.
Also a family solicitor can advise you on a Cohabitation Agreement which can set out who pays what and what happens if circumstances change eg. if you have children.
If you do split up you should revisit the Trust Deed and see if it reflects the intentions of the parties going forward if the property is not to be sold.
A change in the law is needed
Many commentators argue that we need an overarching law of financial claims for unmarried couples. Some say this is not needed because they choose not to marry.
What is clear however is that as in Jones v Kernow ordinary couples with ordinary finances may find themselves fighting through four tiers of courts to get a judgment on what was intended if it is fair to do so. In order to avoid this, taking the right advice at the time, is very important.
If you would like advice on cohabitation agreements or any aspects of family law please contact our Family Team. For advice on co-ownership and deeds of trust please contact our Property Team.
Emma Moore, Solicitor, Property Team, Howell Jones solicitors
