Decision on Kernott v Jones Finally Handed Down

A leading family lawyer has urged unmarried couples to ensure their legal agreements when buying property are fully in line with their wishes, following a landmark Supreme Court judgement which has clarified the law in relation to cohabitation.

Irwin Mitchell’s Alison Hawes said the age-old myth that cohabiting couples have the same rights as those who have tied the knot has caused confusion in the past and that the landmark case of Kernott v Jones has this week gone some way to provide legal clarity once and for all.

The case relates to the rights of Leonard Kernott and Patricia Jones and their entitlement to a £245,000 Essex house they bought for £30,000 in 1985. Since the pair split in 1993, Ms Jones has lived with their two children at the property and paid the mortgage independently.

The County Court and High Court have both previously agreed that Mr Kernott was entitled to just 10 per cent of value of the property on the basis of the couple’s financial arrangements during the time they were apart. However, the ruling was then overturned by the Court of Appeal, which ordered a 50/50 share on the basis of the original agreement.

Today, around 18 years after they split and following months of deliberation on the issue, judges at the Supreme Court have ruled that 10 per cent is a fair share for Mr Kernott.

According to Alison Hawes, Partner and specialist in Family Law at Irwin Mitchell, the decision means couples simply should not assume that legal documents that show co-ownership are the end of the story.

 “Today’s ruling marks the end of a time of uncertainty with a very high-profile judgment that will affect couples all over the country.

“The careful analysis of the couple’s relationship and dealings means that the court has taken the view it is fair to adjust the 50/50 shares from when the property was first bought many years ago, so that the man has only 10 per cent because of what has happened in the intervening years.

“The bottom line is that couples should not assume that the legal pieces of paper that show co-ownership of a property are the end of the story. If one of them goes on to make a different arrangement, for example moving out or not paying the mortgage then the court can and will adjust the original shares.

“Some commentators will say that the court is being paternalistic – that if a couple want a court to intervene and do what is ‘fair’ then they can get married because the divorce courts have a wide discretion.  Others will say that couples who live together need the protection of the court where there is no clear legal agreement, to help reach ‘fair’ decisions.”

Alison added that today’s judgment it also demonstrates just how important it is for unmarried couples to get legal advice when entering into agreements related to assets.

She explained: “Time after time I am contacted by cohabiting couples who have split, are unsure about their rights and confused about their responsibilities; which can be very costly and lead to unnecessary heartache at what is already a very difficult time.

“Cohabiting couples simply do not have the same rights as married couples and, as the government is not looking to reform this area, they may never have. However, there are things that such couples can do to protect both themselves and their loved ones.

“If they break up or there is a change in circumstance – one of them perhaps is made redundant and does not pay the mortgage – then if they want certainty it would be sensible to go back to their living together agreement or declaration of trust and make sure that it says what they want it to. 

“Taking these simple precautions, a bit like making a will, is going to save thousands of pounds in legal fees, and uncertainty whilst lawyers and Judges look at diaries, receipts, and the history of the couple’s relationship and financial transactions over periods of months or years.”