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Thousands of unmarried couples are being misled by the myth of common law marriage. The reality is that the UK's 4.5 million unmarried couples don’t have the same recognisable legal rights as married ones, even if they’ve been living together for many years and have children.
The fact that four courts have gone through the lengthy process of analysing the case of Jones v Kernott (2011) just goes to show why specific legislation for cohabiting couples is required despite the Government's recent refusal to introduce it.
The Supreme Court’s decision in the case of Jones v Kernott deals with what the correct approach is to calculating beneficial interests in property where the legal title to the property is held in joint names by an unmarried couple but there is no express statement of how it is to be shared.
First the facts of the case – The parties met in 1981. They had two children together. In 1985 they purchased a property in joint names for £30,000. No express statement of how the equity would be shared was ever made. The mortgage and the upkeep of the property was shared between them during their relationship, however, after Mr Kernott left the property in 1993, Ms Jones continued to look after the children, pay the mortgage and the upkeep of the property. In 2006 Mr Kernott indicated that he wished to claim a beneficial share in the property. Ms Jones issued court proceedings. By 2008, the property was worth £245,000. The County Court judge’s decision was that Mr Kernott was entitled to only a 10% share of the property. Mr Kernott appealed and a further two courts were involved before a final decision was made by the Supreme Court on 10 November 2011 which effectively restored the County Court Judge’s ruling of 90% to Ms Jones and 10% to Mr Kernott.
The Supreme Court stated that, in cases such as Jones v Kernott, the following principles apply:
1.The starting point is that the parties are entitled to equal shares
2.That presumption can be displaced (although it is very difficult) by evidence that their common intention was different, either when the property was purchased or later
3.Common intention is to be objectively inferred from the conduct between the parties
4.Where it is clear that they had a different intention, at the outset or later on, but it is not possible to infer their respective shares, the court is entitled to decide what is fair having regard to all the circumstances of the case
5.Each case will turn on its own facts – financial contributions are relevant but there are many other factors the court may take into account when considering the parties’ respective shares in the property.
Clearly, the law in this area is still very grey and uncertain. So, until things change, if you’re buying a home with your loved one, or you already live with your partner, you should have a Trust Deed drawn up and possibly a Living Together Agreement too. It may not be very romantic, but it could spare unmarried couples a lot of pain and money if they ever split up.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles