Margaret Hatwood, Partner
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On 9 November the Supreme Court gave Judgment for Ms Jones in this eagerly awaited case. The issue concerned whether a Court can infer unequal ownership of a property by an unmarried couple who hold a property as joint tenants in equal shares at the date of their purchase by looking at their conduct since then and during a lengthy separation.
The Facts:
Mr Kernott and Ms Jones began to live together in 1983 in a mobile home owned by Ms Jones. In 1985 they purchased a property in joint names for £30,000 without their shares being specified. They had a deposit of £6,000 which was the proceeds of sale from Ms Jones mobile home. A joint mortgage covered the balance. They lived there until they separated in 1993. After the separation Mr Kernott did not contribute to the mortgage or towards the upkeep of the property. He made very little contribution towards the support of the family after the date of separation. In 1996 the parties cashed in a jointly owned life policy and Mr Kernott brought another property using his share of the surrender proceeds. He would not have been able to afford this if he had been obliged to contribute towards the mortgage on his joint property with Ms Jones.
The Issue:
In 2008 Mr Kernott argued that he should be entitled to an equal share in the jointly owned property. Ms Jones brought proceedings under the Trust of Land and Appointment of Trustees Act 1996 in which she asked the Court to determine their respective interests.
At first instance the Judge held that Ms Jones had a 90% share and that Mr Kernott had a 10% share. That decision was upheld by the High Court. On appeal to the Court of Appeal, however, that Court found that the property was held in equal shares.
The Supreme Court Decision:
The Leading Judgment was delivered by Lord Walker and Lady Hale who said:
“If it (the Court) cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time.”
The Court inferred that Mr Kernott’s interest in the property crystallised at the date of separation and that reasonable people would not have regarded equal ownership as appropriate many years after that date in the circumstances of this case.
Tips for separating couples who are not married:
- Seek legal advice
- Check the title deeds if you own a property
- Was there a declaration and has anything occurred which might vary the original declaration (the title deeds are the starting point)
- If there are children then one parent – often the mother – can make a claim under Schedule 1 of the Children Act 1989 and those claims can include lump sums and property
Margaret Hatwood is a Partner in Anthony Gold's Family & Divorce Law team. For further information email Margaret Hatwood or call 020 7940 4000.
