Supreme Court criticised Parliament over failure to legislate on cohabitation
Cohabitation family lawyers have called for legislative reform in the wake of the landmark Jones v Kernott judgment on cohabiting couples’ rights to property.
The Supreme Court unanimously held that Mr Kernott was entitled to only a ten per cent share of the house he jointly bought with his girlfriend in 1985 for £30,000. Mr Kernott moved out in 1993 when the couple split up, paid nothing further towards the mortgage and upkeep, and made only small contributions towards the support of their two children.
Delivering judgment, at [2011] UKSC 53, Lady Hale said the presumption of joint ownership may be rebutted by evidence that it ceased to be the common intention of the parties to hold the property jointly. The ruling overturns the Court of Appeal and restores the order of the county court.
Charlotte Posnansky, associate at Charles Russell, said: “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.”
Both Lords Wilson and Collins criticised Parliament for failing to legislate on cohabitation.
Delivering judgment, Lord Wilson said: “In the light of the continued failure of Parliament to confer upon the courts limited redistributive powers in relation to the property of each party upon the breakdown of a non-marital relationship, I warmly applaud [this] development of the law of equity.”
Toby Atkinson, solicitor at Charles Russell, said: “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.”
David Allison, chair of family lawyers’ group Resolution, said: “Despite the ‘common law’ marriage myth, it is possible to live together with someone for decades and even to have children together, and then simply walk away without taking any responsibility for a former partner’s welfare. That is simply wrong.”
Resolution has campaigned for greater legal recognition of the one in six couples in the UK who live together and do not marry.
Alison Hawes, partner at Irwin Mitchell, said: “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.”
