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James Carroll, Co-Chair of the Law Society's Family Law Committee: Jones v Kernott

Date:10 NOV 2011

Law SoceityThe Supreme Court's decision on the case of Jones v Kernott, proves one thing - Statutory Reform of cohabitation law is essential.

The law for cohabiting but unmarried couples at present is complex. Although the Law Commission, supported by the Law Society, has made proposals to reform, successive governments have failed to legislate. Regrettably, the situation remains unsatisfactory for unmarried couples who separate, and, if they can't agree, they face a complicated and costly legal dispute.

Contrary to popular belief, there is no such thing as a ‘common law spouse'. Principles of property law apply to cohabitants. The rights of cohabitees do not compare to those of married couples and query with reform if they ever will. Divorce law has an overriding duty to search for fairness and to try to ensure that as a minimum each party's needs are met. Property law principles are very different, and may mean that one party will be left in a situation where their needs are not met and there is nothing the Courts can do to remedy this. It may be that one party is entitled to nothing at all, while their former partner receives everything.

The starting point of the law is that properties which are bought in joint names by cohabitees are presumed to be owned in equal shares and properties held in one person's name only are presumed to be held solely by that one person. This presumption can be rebutted by the parties' intentions. It is not always straightforward to prove these intentions. Very much depends on the specific facts.

Jones v Kernott, has moved the law forward somewhat. Ms Jones and Mr Kernott separated and only Ms Jones continued to pay the mortgage and the cost of the upkeep on their jointly owned property for 14 years afterwards. The Court of Appeal decided that despite these unequal contributions, the couple had an equal interest in the property. The passage of time failed to alter these intentions. The Supreme Court disagreed and determined that while their respective shares in the property may have been 50:50 at the time of separation, their interests had since changed. Ms Jones had an interest of 90% and Mr Kernott had an interest of only 10%. The Court relied on a finding of fact at first instance that this is what the parties had intended. However the Court helpfully confirmed that where the parties disagree and where it is not possible to determine the parties' intentions were, judges can impute the intention based on a ‘fair' outcome. However, herein lies the continuing uncertainty since what is considered ‘fair' cannot be determined by any precise formula or method. While the law has certainly taken a step forward therefore, the idea of ‘fairness' remains vague and subjective and is in no way comparable to fairness in ancillary relief proceedings.

The bottom line is that the decision Kernott itself could have been made on existing law as the couple had intended their shares to be held unequally. However, the Judgment concludes the debate as to whether absent such an intention, an intention can be imputed, and if so, it will be by reference to fairness.

Whilst the decision is both welcomed and applauded it must be said it fuels lawyer semantics and increases the scope for litigation. It's the right outcome no doubt, but solves the problem only for Ms Jones and not the millions who come in her wake. Reform remains essential.

James Carroll is a family and property litigation specialist at Russell-Cooke Solicitors, and Co-Chairs the Law Society's Family Law Committee.