Kernott v Jones important for family lawyer guidance on cohabitation law

8th March 2015 by

 

In May 2011 five Supreme Court Judges considered the case of Kernott v Jones [2010], a cohabiting couple whose shares in their jointly-owned property could not be agreed upon once their relationship ended. Family lawyers in Brighton, London and throughout the UK had for some time been calling for guidance on such issues because the law of the time did not, it was felt by many, adequately offer definitive reasoning for each court’s handling of individual cases.

Cohabitation law or, perhaps, the lack of it
The position relating to ownership of property for married or civil-partnered coupes is provided for in s.24 of the Matrimonial Causes Act 1973. Using this piece of legislation, family lawyers can give solid guidance to clients pursing a divorce or civil-partnership dissolution.

However, for cohabiting couples there is no such legislation and where a party is neither legally coupled with a property co-owner, engaged to be married, or party to an impending civil-partnership, they are required to apply to the court for a declaration of a resulting, implied or constructive trust in their favour under s. 53(2) Law of Property Act 1929, and a sale under s.14 Trusts of Land and Appointment of Trustees Act 1996.

Procedure for such an application is governed by Civil Procedure Rules 1998.

Where cohabiting couples cannot agree their entitlement shares in a property a court may be asked to rule. The case of Kernott v Jones raised the key question of when it is appropriate for judges to depart from a ruling of mutually beneficial shares and how then to determine the quantity of shares once it has been decided to deviate from a previous judgement.

In Stack v Dowden [2007] the House of Lords asked the court to decide not what it felt was “fair” but to determine a “result” which reflected “what the parties must, in the light of their conduct, be taken to have intended”.

In most cases, it would be reasonable to deem that both parties, on purchasing a property together or at the outset of a cohabitation arrangement, would infer a fair outcome of division if their circumstances changed and it is therefore a difficult ruling for courts to make with regard to the inference of a different set of outcomes where division cannot be agreed.

Legal advice on cohabitation law from family lawyers at Healys in Brighton and London
Whether you need advice on the division of property following the breakdown of a cohabiting relationship or you wish to discuss the terms of a financial settlement on divorce, the family lawyers of Healys LLP, in Brighton and London, have a wealth of experience and the benefit of knowledge and expertise available from the members of its full service legal team.

To discuss your situation please call Catherine Taylor on 01273 669 124 or e-mail catherine.taylor@healys.com for expert advice on cohabitation and divorce law.