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What's New? > Certainty over fairness for unmarried property owners

Certainty over fairness for unmarried property owners

Published: 3rd September 2010

Unmarried couples who buy a house together must make sure they have a written agreement setting out exactly who owns what.  That is the advice following a Court of Appeal ruling where a woman was forced to hand over half of a house to a former partner, even though he had stopped contributing when he moved out. 

And following the outcome of legal action by the couple, which reached the Court of Appeal in  Kernott v Jones, a leading judge is calling for a change in the law.  

The couple bought a house in joint names in 1985 and when they separated in 1993, Mr Kernott moved out, cashed in the endowment policy in his name which was intended to pay off his part of the mortgage, and did not make any more contributions to the household. Ms Jones carried on living in the house, paying all the mortgage payments and the costs of bringing up the couple’s children. 

The general rule is that when a couple buy a property as joint owners, they will own a property in equal shares - unless they make a declaration to say otherwise. But when the couple ended up in Court, at both County Court and High Court hearings, the judges ruled that Ms Jones had earned herself a 90% share in the property, arguing that this displaced the general rule. 

The case finally arrived in the Court of Appeal, where the judges disagreed saying that only a clear declaration could displace the general rule. The Court said that the lack of contribution by Mr Kernott was not enough to conclude an agreement to change the ownership shares in the property, ruling that the property still belongs to the couple equally, although one of the judges dissented, Lord Justice Jacob, and called for the law to be clarified.

Said  Richard Pennington, family law specialist with  Ward Gethin Solicitors:   "It may seem that the court went for certainty over fairness, but in both this case and in the leading case of Stack v Dowden, there were dissenting judgments. It shows that the courts are uncomfortable with this position, but for the time being the only safe option for an unmarried couple buying a property is to make things absolutely clear in a formal declaration of trust. And if the situation changes and one of them leaves the property, they need to agree and record any change in the shares.

"It is different for married couples because the Courts have wide powers to redistribute property between parties when they divorce; in contrast, when an unmarried couple splits up, the job of the Courts is to decide what each party owns, not how their property should be divided between them."

If you would like further advice on the above or any other family related issue, please contact a member of our Family Law team on 01553 660033.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.