Family Law

DISTRICT JUDGE PETER GLOVER

The recent decision of the Court of Appeal in Kernott v Jones [2010] EWCA Civ 578, [2010] 2 FLR (forthcoming) seems to have perplexed practitioners and academics alike. It even made the pages of the national press as another supposed example of the apparently unprincipled and unpredictable consequences of litigation under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) following the breakdown of unmarried property-owning cohabitation. Calls were renewed for the government to reconsider the Law Commission's draft bill to regulate such relationship breakdowns as Parliament has seen fit to do in the context of civil partnerships. This article will suggest that in fact the decision was principled and in accordance with long settled law, referred to, if only in passing in the judgment of Wall LJ, but which regrettably formed no part of the ratio.

Kernott is the latest in an ongoing stream of TOLATA cases brought before the senior courts. At present, they fall to be considered in the light of the House of Lords judgments in Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858. In that well-known case, the Law Lords endeavoured to set out guidelines for judges hearing cases such as Kernott. The majority, agreeing in the main with Baroness Hale, strengthened into a presumption the existing assumption that the beneficial interest mirrors the legal interest so that a transfer into the sole name of one party to a relationship and to the exclusion of the other denotes that the legal title vests in the transferee alone, while a transfer into joint names denotes joint ownership of the legal title. We are told that ‘the burden will therefore be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests and in what way' (para [68]). Not only is such an evidential task ‘not lightly to be embarked on', but cases where such submissions succeed will be ‘very unusual' (para [69]).

To read the rest of this article, see November [2010] Family Law journal (link for online subscribers who have logged in). To log on to Family Law journal Online or to request a free trial click here.

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