There will not be many family lawyers who have not welcomed the decision in Jones v Kernott. The decision is a victory of common sense and has shown once again the willingness of the judiciary to fill the lacuna caused by successive governments' failure to set up a legislative framework to deal with the breakdown of the relationship of cohabitees. It is also a further illustration of the fact that most cohabiting couples do not fully understand the legal implications of what they do when they buy, and then separate. If Miss Jones had been to see her solicitor at the time of separation, she would have been advised not to part with any money until the property was transferred to her. Problem over.
If this problem is to be addressed then it is the conveyancers who need to absorb the impact of this judgment. Courts have stressed for years the need for conveyancers to advise their clients to set out their intentions and the advisability of entering into cohabitation agreements. When people decide to buy a house together they don't take advice from family lawyers. If the conveyancers do not work within a practice with a family department it is unlikely that they will be familiar with the line of cases which regularly stress the need for proper advice!
Conveyancers should always advise cohabitees to draw up a cohabitation agreement or a basic trust deed setting out their joint intention as to beneficial ownership at the time of purchase. After Jones v Kernott, they should also advise them of the need to update these documents regularly to meet changing intentions. The cohabitation agreement or trust deed cannot foresee all eventualities, but it can set out some and can set out the principles the parties wish to be bound by on relationship breakdown. The obvious and most difficult issue to address will be what happens in the event of a breakdown following the birth of children. Whilst agreeing a set of guiding principles may not avoid the need for legal action, it should reduce the area of contention.
Family lawyers are more likely to be meeting and advising clients after break up rather than before. At that stage, we will need to consider any evidence of change of intention with clients where property is owned in joint names, in much the same way as we do when advising clients where the property is in one name only. What will be new, is the need to advise a co-owner client who has left the property of the need to avoid doing anything which could be construed as a change of intention. They should continue to pay the mortgage, take an interest in the property and contribute to repairs, but above all, get it resolved before life and time throw up complications necessitating legal fees higher than the value of the property.
Caroline Falkus and Sharon Bennett, are both Partners at Bross Bennett LLP. Bross Bennett is one of the largest and most experienced niche family law practices in London, dealing with all aspects of family law for people who are married, living together or in civil partnerships. The firm features as a recommended firm in both Chambers Directories and the Legal 500.