20 May 2011 by

The Rights of Unmarried Couples, a cautionary tale to be continued

Last year the number of marriages in England and Wales was the lowest since 1895, with just 232,900 couples deciding to bite the bullet and get hitched. Instead of getting married, many couples are just living together or ‘cohabiting’.

The problem is that many couples mistakenly believe that, having lived with their partner for a couple of years, they become ‘common law husband and wife’ with the same rights as married couples. Unfortunately, this is not the case.

The recent Court of Appeal decision in the case of Kernott –v- Jones is a prime example of the very different way in which the Court will approach property disputes between unmarried couples as compared with their married counterparts.

In the opening paragraph of his judgement Lord Justice Wall gave this warning: “This is a cautionary tale, which all unmarried couples who are contemplating the purchase of a residential property as their home, and all solicitors who advise them, should study.”

The facts of this case are that the parties met in 1980 and shortly after their first child was born in 1984 they purchased a house together in their joint names for £30,000. Miss Jones provided the deposit of £6,000 from the sale proceeds of her former home and the balance was raised by a mortgage. The parties had a second child together in 1986, but never married.

The parties subsequently separated in 1993 and Miss Jones assumed sole responsibility for all the outgoings for the property and was solely responsible for maintaining the children. In 1995 the property was put on the market for sale, but was not sold. Then, in May 2006, more than 12 years after they had separated, Mr Kernott sought his half share of the property despite having made no contribution towards the mortgage or other household costs since their separation.

Miss Jones commenced proceedings in the county court seeking a declaration that she owned the entire beneficial interest in the property and was awarded 90% on the grounds that this was fair and reasonable. Mr Kernott appealed the decision in the High Court, but lost. He then appealed the decisions in the Court of Appeal and succeeded and was awarded a 50% interest in the property.

The problem is that in cases where the parties are unmarried the role of the Court is not to determine what is fair and reasonable, but rather the parties’ shared intentions. Unfortunately for Miss Jones, the Court of Appeal found that as the property was initially purchased in joint names and they had subsequently agreed to sell the property and share the sale proceeds equally this showed their intention that the property was to be held jointly in equal shares.

The story does not, however, end there as Miss Jones has appealed the decision to the Supreme Court and we must therefore now wait to see what the final outcome will be.

So the moral of this story for unmarried couples is not necessarily that they must marry, but that they should ensure that their intentions are clear and documented so that a dispute does not arise in the first place. This can easily be achieved by executing a deed of trust or entering into a cohabitation agreement when buying property or living together.

If you have any questions, please call or email Darrell.

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Wedding fever

Whether you had Royal Wedding fever or you were just happy for an extra day’s holiday you can’t help but have noticed the big event on the 29th April.

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Charitable Giving and your Will

Legacies are enormously important to charities. It is estimated that almost £2billion is left to charities in Wills every year, and one of the oft-cited reasons for making a Will is that you can include charities rather than your immediate family members, who would inherit under the intestacy laws.

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