Courts can decide ‘fair’ split of unmarried couples’ property

09 Nov 2011

On 9 November the Supreme Court delivered its long-awaited judgment in the case of Jones v Kernott, a decision with implications for the thousands of unmarried couples who jointly own property.
Hardwicke's Ajmal Azam comments: ‘In a landmark decision, the Supreme Court has unanimously allowed Patricia Jones's appeal against the Court of Appeal ruling that Leonard Kernott was entitled to half the value of the home. The Supreme Court held that Kernott's share was limited to 10%.
‘The ruling makes it clear that even though the home was purchased in joint names, judges are permitted to substitute a fairer division of possessions in light of subsequent conduct.
‘The couple had originally purchased the home in joint names and lived together, sharing the costs equally for some eight years. They separated and Mr Kernott left the home. Ms Jones then continued to make the mortgage repayments on the property for the next 14 years without any assistance or contribution from Mr Kernott.
‘The Court of Appeal awarded Mr Kernott 50% on the basis that there was nothing to indicate that the parties' intentions had changed after separation and that it was not permissible for a court to impute an intention where none was expressly uttered nor inferentially formed, based on the decision of the House of Lords ruling in Stack v Dowden.
‘However, the Supreme Court has ruled that where it is clear that a couple had a different intention at the outset or had changed their original intention, but it is not possible to infer an actual intention as to their respective shares, then the court is entitled to impute or infer an intention that each is entitled to the share which the court considers fair.
‘The decision is a welcome one (especially in light of Parliament's failure to act on the Law Commission’s 2007 report into the financial consequences of relationship breakdown) and certainly provides a fair outcome for Ms Jones. However, there remains a large degree of uncertainty and, in the absence of legislative action, an acute need for unmarried couples to ensure their interests are properly and adequately protected. There may well however be disquiet in some quarters that the Supreme Court has yet again acted in circumstances where Parliament has chosen not to.’