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  1. Wealth
November 9, 2011

Expert reaction: Kernott v Jones decision on divorce and cohabitation rights

By Spear's

The Supreme Court’s decision may go some way to addressing the injustices inherent in the current law affecting cohabitees but it does so at the cost of certainty

Victoria Francis, Solicitor at law firm Speechly Bircham, comments on today’s Supreme Court judgment in Kernott v Jones, which addressed the rights of cohabiting, not married, partners when divorcing:
“The long wait is finally over. The Supreme Court’s decision may go some way to addressing the injustices inherent in the current law affecting cohabitees but it does so at the cost of certainty and will surely lead to more litigation as co-owners attempt to unscramble what is really a fairly incomprehensible area of the law unless you are a specialist in it. Few people purchasing properties together will be able to claim that and frankly, that is why the law in this area is not fit for purpose.”

Read about Kernott vs Jones on

This landmark judgment clarifies how to determine the property rights of unmarried couples in the event of relationship breakdown. However, according to Joanna Grandfield, barrister and specialist family lawyer at national law firm Mills & Reeve, whilst clarity is welcome, it will not solve the underlying need for legal reform in this area:

“The Supreme Court’s decision approves the increasing tendency of the courts to avoid the harsh results of a strict interpretation of property law through the use of “inferred intentions” as a means of getting round legally correct, but morally unfair results.

“The price of this approach is that cases will continue to come before the court requiring an extensive examination of the history of a relationship including detailed evidence from the parties as to who said and did what when in order to determine what was (or should have been) agreed as to property ownership as a result.

“That has a high cost, both emotional and financial, for all concerned. Courts have been left to paper over the cracks of a legal framework which has left cohabiting couples effectively to fend for themselves on relationship breakdown for far too long. Legislation needs to be introduced to reflect the society which it is supposed to serve.

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“Government could, should and must act to address the yawning gap in protection and provision for a significant proportion of the population through the introduction of new laws to govern and formalise the rights and responsibilities that living together for a period of time (the Law Commission recommends 2 years) would bring.”

“Whilst good news for many, the decision is unwelcome for those who have taken a deliberate decision not to marry, specifically because they do not wish to place themselves in a situation whereby their assets could come under attack on relationship breakdown.

“The decision of the Supreme Court means that these individuals would be well advised to enter into a cohabitation contract sooner rather than later rather than risk a protracted dispute within which a court would determine what it considers to have been the intention, irrespective of whether or not it was.”

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Renato Labi, Partner with international divorce law firm Hughes Fowler Carruthers, said:

“The Supreme Court has tried to clarify a complicated area of the law. Where an unmarried couple disagree about their respective shares in a jointly-owned house, the court must first look for evidence of their intentions. If there is none, the court is entitled to decide what would be a fair division. But a couple who find themselves arguing this out in could still end up in expensive and uncertain litigation. The clear message is: if you’re buying a house with someone and you are not married, you must discuss and agree what your shares are, and you must tell your conveyancing solicitor.

“This Judgment does not improve the situation for unmarried couples who split up. They still have no rights arising out of that relationship. Only Parliament can change that. So beware of assuming that, just because you are living with someone, you will acquire a share in their house. If it is not in joint names, you could still find yourself out on the street.”

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Jonathan West, head of Family at London law firm Prolegal, says on today’s Supreme Court cohabitation rights judgment:

“In my view the Supreme Court was posed something of a dilemma in this case. By allowing the appeal they have in effect accepted a challenge that successive governments (and the legislature) have shown no ambition to undertake – they have been prepared to tackle what is a real injustice in the way in which cohabitees rights are dealt with by acknowledging changing social conditions.

“The question that I am however struggling with is whether they were right to do so. Whilst I understand and accept the logic of the decision I do have some very grave concerns that this judge made law goes much further than any statute intends. Of course the law needs to evolve to take account of current social mores but it is my view that this is the wrong way to bring about such change. Yes change is required, but this should be after proper consultation and Law Commission recommendations.

“Fairness must be at the heart of our legal system and by this decision the Supreme Court have enshrined that principle – but it is incongruous with the statute upon which the case was based. Indeed, I would go further. It seems to me that by fundamentally changing the way in which such cases are dealt with, even in circumstances where the parties had reached an agreement initially, that one almighty can of worms has been opened.

“In my view if the parties have entered or reached an agreement then they should be held to it unless there has been a novation. This is not so much a case where an agreement was reinterpreted but rather metaphorically torn up and replaced by what the judges see as fair. Fair for one party does not seem fair for the other, surely that isn’t real fairness.

“This is a complex area of law which has just become a minefield.”

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Marilyn Stowe, senior partner at Stowe Family Law, the UK’s largest specialist family law firm, says:

“Today’s Supreme Court judgment is a landmark decision that will potentially affect hundreds of thousands of families up and down the country. It is one in the eye for orthodoxy: a brave decision, which puts right a considerable injustice.

“Kernott v Jones was a case arising from a family breakdown, but because the parents cohabited and never married, the family was not covered by the “safety net” of family law when the parents split. Instead, the quarrel over the ownership of the family home had to be dealt with in the Chancery Court, where “touchy feely” family law and “reasonable needs” have no place.

“The judgment means that when a partner has made a financial contribution – even if it has not been set down in writing – that contribution may now receive due recognition should the couple split at a later date.

“Finally, the fact that four courts have gone through the tortuous process of analysing this case just goes to show why specific legislation for cohabiting couples is required – despite the Government’s recent refusal to introduce it. Improved legal rights could avoid any more cases such as Kernott v Jones. Instead, such cases involving unmarried couples should be returned to the Family Division, where they properly belong.”

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Lawyers from Charles Russell say:

“Until now, decisions about the division of finances for cohabitees have required a complex and historical analysis of all past actions to determine property rights. Whilst the judgment in Kernott v Jones still requires the courts to do all they can to ascertain the couple’s  actual intentions about the way in which the equity in a property should be split, if that exercise does not provide a clear result, the court may now impute an intention to the parties to achieve what they see as an objectively fair result.” [Charlotte Posnansky]

“This case is a timely reminder of the importance for cohabitees to define clearly their respective shares in a property upon purchase and to revisit any agreement if circumstances change. If they do not, it is clear that the court may now impute an intention to the parties which could be completely different to what they ever intended. Given that one in six couples now cohabit in the UK – expected to rise to one in four over the next few decades – legislative reform cannot come soon enough.” [Toby Atkinson]

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