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Cohabitees and Joint Owned Property – Legal News

The Supreme Court has recently made a decision in the property dispute case of Kernott and Jones which has implications for many cohabiting couples. These days many couples are choosing to live together rather than get married and often believe that if the relationship breaks down it is easier to deal with than if they were married. Whilst cohabiting couples obviously don’t need to go through the divorce process, they often have a nasty surprise when it comes to the division of shared property. Married couples’ rights to property are protected to a large extent by legislation; however, cohabiting couples don’t benefit from the same protection as difficult trust law rules are based largely on past cases rather than cleaner statutory provisions.

This situation has led to some, on the face of it, very unfair decisions being made by the courts and a prime example was the case involving Miss Jones and Mr Kernott. The couple purchased a house together in 1985 and separated in 1993. At that time Mr Kernott moved out and made no further financial contribution to the property. Miss Jones had already paid the deposit on the house and the mortgage whilst they were together and continued to pay the mortgage after they separated. Almost 18 years later, Mr Kernott decided he wanted to claim a half share of the house.

The County Court that originally heard the case decided Mr Kernott should be awarded just 10% of the value of the house but unfortunately for Miss Jones, the Court of Appeal later agreed that he was entitled to half the house. This was because the couple had not expressed their respective shares in the property either when they bought the house or at a later date. It was therefore presumed that they owned it in equal shares.

Understandably unhappy with the decision, Miss Jones took her case to the Supreme Court which overturned that decision on 9th November, and ruled that the 10% Mr Kernott was originally awarded was fair. The Supreme Court decided that in the absence of any express agreement as to how the property should be shared and where the parties’ intentions cannot be inferred, the Courts can apportion shares of the property as it considers fair.

Is this good news for cohabiting couples? The answer is yes-probably! At least the Courts now have a green light to decide what is actually fair in some cases but there are no guarantees the Courts will always get it right. There is a desperate need for clarification of the rights of cohabitees and hopefully this will be forthcoming in the not too distant future. In the meantime it is vitally important that couples planning on purchasing a house together take legal advice before doing so and set out their respective shares in writing. The situation also needs to be reviewed when there is any change in circumstances, eg. if they have children. If you need advice on this issue or any other family matter please contact our specialist family team at Everett Tomlin Lloyd and Pratt.

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