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The Supreme Court has allowed Patricia Jones’ appeal and has attempted to clarify property rights for unmarried couples

Today the Supreme Court has handed down a judgment which attempts to clarify the position relating to the property rights of unmarried couples.

Graeme Fraser, family partner with Cumberland Ellis LLP, a Central London law firm, has expertise and a particular interest in cohabitation cases. Graeme sits on Resolution’s Cohabitation Committee, which has an agenda to reform cohabitation law. He is author of several chapters for Resolution’s Cohabitation Claims and for the LexisNexis PSL online service. He also trains other family lawyers for CLT.

He comments on today’s decision as follows:-
“By reinstating the first judgment which gave a 90% share of the home to Ms Jones, the Supreme Court allowed Ms Jones’ appeal although two of the judges gave different reasons, importing concepts of fairness (used for married couples’ divorces) if there was no evidence of the couple’s actual intentions, either expressed or inferred.

The Supreme Court has allowed Patricia Jones’ appeal and has attempted to clarify property rights for unmarried couples where there is no clear evidence of the terms on which the couple intended to hold the property.”

The decision attempts to provide clarity for the increasing number of couples choosing to live together without marrying. The Government’s Actuary Department has predicted that by 2031, nearly 4 million people will be cohabiting, so an increase in this kind of property dispute is inevitable.
But with no immediate prospect of cohabitation law reform being enacted by Parliament, the laws of trusts upon which English property law is based will always prevail:-

“Until new laws are passed, reforming this area, which will not happen until at least the next 3 years, it will be left to the courts to grapple with disputes on a case by case basis. There are 4 different judgements all reaching the same conclusion, and in such circumstances there continues to be confusion as each case has to be decided on its own facts and as Lord Walker and Lady Hale stated: “there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence.”

Ms Jones bought a family home with Mr Kernott, where they lived as man and wife with their children for about 8 years. Significantly, they owned the home jointly and equally. Ms Jones paid the deposit and, while they lived together, Mr Kernott paid her an allowance to enable her to pay the mortgage and household expenses. Mr Kernott then undertook work on the home, including an extension, which added an estimated 50% to its value.

But after they split up, Mr Kernott moved out and Ms Jones ended up paying all of the mortgage and household expenses on her own. After the children had grown up, some 13 years later Mr Kernott claimed his half share in the property. Ms Jones believed that the post-separation conduct of Mr Kernott meant she was entitled to considerably more than an equal share in the property. The first court agreed.

The Supreme Court has overturned the Court of Appeal, which rejected Ms Jones’s argument and ordered that Mr Kernott should have a half share of the property. Applying strict principles of property law, the Court of Appeal could not find any evidence that the couple had ever openly agreed to vary the equal share arrangements. Although after the separation, Mr Kernott had not contributed to the mortgage or household costs and had not paid child maintenance, the court accepted that he had, equally, not sought payment from Ms Jones for her having unrestricted use and exclusive occupation of the property for all those years.

Notes to editors:
For further details and interviews please contact:

Graeme Fraser
Family Partner, Cumberland Ellis LLP
graemefraser@cumberlandellis.com
Tel: 020 7 242 0422

Cumberland Ellis is a 20 partner law firm based in central London. The firm has an outstanding reputation for delivering high quality legal services to UK and international clients across its three main practice areas of Property, Company and Commercial and Private Client - further details can be found at www.cumberlandellis.com

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