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Rights of Unmarried Couples

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The Supreme Court has handed down judgment in a landmark case concerning the beneficial interests in a house owned by an unmarried couple. In Jones v Kernott , the parties had acquired a property jointly in 1985. They lived in the house, sharing expenses, until Mr Kernott left in 1993. Mrs Jones remained in the property with her children and paid all the household expenses. Mr Kernott initiated correspondence with a view to claiming his interest in the property only in 2006. The matter came before the court in April 2008.

The starting point was that they were joint tenants in law and equity and that they had equal interests. That presumption could be displaced by showing “(a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change”. The common intention could be deduced from conduct. “In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, ‘the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property’ “. Each case will turn on its own facts.

In this case, the Supreme Court overturned the decision of the Court of Appeal and restored the order of the trial judge that the property was held in the proportions 90:10 in favour of Mrs Jones.

The lesson to draw from this case is that doubt, and litigation, can be avoided if the parties set out their intentions clearly. SWLaw would recommend that couples should take advice before acquiring property together, or before starting to live together, and consider the merits of having a cohabitation agreement to set out their intentions.

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