News and Events

Unmarried Couples Urged To Record Their Wishes In Relation To Ownership Of Their Home

The case of Kernott v. Jones, decided by The Supreme Court this week, has thrown the ownership of the family homes of unmarried couples into uncertainty. The ruling means that unmarried couples need to record their wishes about who owns the home even where the legal title is held jointly.

Mr Kernott and Miss Jones began to live together and to bring up a family. They bought a house together and it was put in their joint names. In 2003, however, Mr Kernott left Miss Jones and thereafter she brought up their family and also paid all the outgoings on the house including the mortgage. Four years ago, Mr Kernott told Miss Jones that he wanted 40-50% of the value of the house. She told him that that was not fair given that on the day he left, the house had been worth much less and the mortgage had been much higher.

The County Court awarded Mr Kernott 10% of the value of the house. He appealed and won. The case has now gone to the highest court in the land, and that court has restored the original 10% finding.

With married couples who break up, they are supported by a framework of laws and rules which govern how their assets should be split. With unmarried couples, however, they are treated much the same as, say, a brother and sister or perhaps two friends who bought a house together. Such disputes are dealt with using old-fashioned laws relating to property and trusts which do not really fit in with modern times in which couples living together and breaking up are common occurrences. The decision of The Supreme Court is new. What it has said is that where the parties' intentions are clear and do not change, those intentions will be followed by the court. Where, however, they cannot be deduced or, as with Miss Jones, they change because one of the couple leaves, the court will simply order what is fair in all the circumstances.

Every single relevant factor will be taken into account and the court will then make a fair award. This has brought in a whole new level of uncertainty. What is "fair" very much depends on whom you ask and what you tell them of the background circumstances, and it will be very difficult for the court's decisions to be predicted in advance.

Miss Jones went through four years of legal turmoil. The anguish and cost can only be guessed at. Although she came out well in the end, she might easily not have done.

Miss Jones has urged unmarried couples to record their wishes in writing. She recognises that this is not terribly romantic, but she is certain that it is the sensible thing to do. Couples should consider this not only when they purchase a property, but also whenever anything really significant happens. Though Miss Jones and Mr Kernott thought that they were on solid ground when they purchased the property in joint names, it turned into quicksand when Mr Kernott left. Significant junctures might be the birth of a child, the setting up of a new business and, of course, the break-up of the relationship if there is the necessary element of goodwill and co-operation.

A marriage is a legal contract. Very few people, however, regard getting married as unromantic, and couples really should be prepared to see a solicitor, as Miss Jones recommends, and sort these issues out at the time - perhaps afterwards they can have a romantic, candlelit dinner to celebrate.

If you have any queries regarding legal issues for unmarried couples please call Jill Cochrane on 01935 811308 or e-mail j.cochrane@battens.co.uk or Leanne Weatherill on 01305 250560 or e-mail l.weatherill@battens.co.uk

Created: 11 November 2011