JARVIS Family Law
Living Together? Is your position protected?
A whilst ago my article entitled ALL CHANGE OR STAY AS YOU ARE? considered a case passing through the court process called Kernott and Jones.
That case concerned two parties who had separated but who had previously lived together with their children as cohabitees and who owned a home together jointly.
At the time they separated they both acknowledged that they had an equal entitlement to the value of the home. Ms Jones remained in the home with the children and Mr Kernott left and eventually purchased another house for himself. Mr Kernott made no particular financial contribution to the jointly owned home after he left. Ms Jones paid the mortgage, the usual outgoings, all insurances and maintained the property at her own expense.
The question for the court was should their entitlement after sever
al years living apart remain equal or should Ms Jones “investment” in the home mean that she should now be entitled to a greater share of the value of the home.
When I wrote the last article the Court of Appeal had ruled on Mr Kernott’s appeal that there was no evidence of a common intention between Mr Kernott and Ms Jones to vary the shares each had held in the property at the time of separation. The court therefore ruled that their shares should remain at 50/50 ie an equal share unvaried from the date of separation. That all seemed fair and straightforward.
However, unaccepting of that outcome, Ms Jones appealed to the Supreme Court and last week the Supreme Court over ruled the Court of Appeal by stating that the original judgement (given some time ago by the lower County Court) was right from the outset and allowed Ms Jones appeal and awarded her 90% interest in the home, leaving Mr Kernott with only 10%. Is this fair? Each case is different with unique circumstances and there seems there is now no one clear principle for cohabitees.
What should we draw from such costly and time consuming goings on in the court system?
- All cohabitees who purchase property together should strongly consider having a short trust deed drawn up establishing their rights and ownership to a property (particularly if contributing different amounts of deposit) to avoid later dispute.
- Cohabitees should take legal advice from a family lawyer at the outset of living together and should consider drawing up an agreement establishing not only what should happen if they separate, or one party should die, but also what should happen financially during their time together. This is particularly relevant if living in a property which is owned by only one of the cohabitees.
- It is important to understand that there is no concept of “common law spouse” or automatic entitlement after a period of cohabitation. Rights for cohabitants are very limited indeed and as we can see from the application of law by the courts, is very difficult to interpret or predict with certainty. If you want to be entitled to something of financial value, get advice and have it formally documented.
- If monies are being received from a relative or third party (perhaps a parent) towards the deposit which may or may not become repayable at some future time, then that third party should also take legal advice to properly protect their interest. (This also applies to those providing funds to married purchasers of property.)
- If you separate as cohabitees you should take early legal advice from a family lawyer to establish your position vis a vis any property and take such action to protect that interest.
The law for cohabitants upon the breakdown of their relationship has been in 
disarray for as long as we family lawyers can remember. The case of Kernott and Jones does nothing to make the position any clearer.
Jarvis Family Law are available to provide advice not only to cohabitees in dispute but on all aspects of Family Law including divorce, financial settlements and child related issues. Initial interviews can be arranged for a fixed fee of £10 for one hour when we can provide the initial advice and overview or your situation.
