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The Decision
Supreme Court Judges in their judgment released today, have unanimously allowed the appeal in Jones v Kernott. The Supreme Court has restored the original order of the County Court Judge.
The Judge who made the original decision, based on the evidence before him, decided that the appropriate shares should be apportioned 90% to the woman and 10% to the man. This decision has been upheld. The Court has held that the intention of the parties regarding the ownership of the joint property changed after separation. The court was able to consider the whole course of dealing in relation to the property between the parties in determining what their imputed intention was.
Lord Collins , in agreeing with the Judgment of Lady Hale and Lord Walker pointed out ‘ the courts are courts of law, but they are also courts of justice.’
We attach a link to the full report of the Supreme Court Judgement so you can read it in full:
http://www.supremecourt.gov.uk/docs/UKSC_2010_0130_Judgment.pdf
What does this case mean for co-habiting couples?
The case of Ms Jones and Mr Kernott is not the norm and the outcome is specific to the facts of their circumstances. However, there are very clear principles that cohabiting couples need to bear in mind.
In cases where there is no express trust (evidence as to what the parties agree are their actual financial interests in a property – for example a declaration of trust or co-habitation agreement), then, the courts can consider, from available evidence, what the parties shared/common intention is and the proportions in which the parties interests are held. The Courts can do this by considering the whole course of conduct between couples. If the parties’ intention is not clear then the court can still impute their intention by looking at all of the facts. Although this gives the court power to decide what is just and fair, for clients there is huge uncertainty. What weight would a judge put on certain facts/conduct? What factors would a court consider relevant?
Therefore, it is always best to prescribe in an express declaration your intentions and update this if your circumstances change, as this would be conclusive of ownership / shares. By preparing a declaration of trust or cohabitation agreement, you will reduce the uncertainty of an outcome. Had Ms Jones and Mr Kernott recorded their intentions, they would not have had to pursue the matter through four courts at huge expense.
Please see Jennifer's article recently published in the business section of the Gloucestershire Echo
http://www.thisisgloucestershire.co.uk/Don-t-risks-assets/story-13986816-detail/story.html Our family team is experienced in dealing with all such matters. If you would like to discuss the ramifications of this case, as they may apply to your particular circumstances, please get in touch with :
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