Property Apportionment: Supreme Court Precedent for Unmarried Couples expected

The Appeal in the Kennett V Jones case is due to be heard this week by the Supreme Court  (Wednesday 4th May, 2011).  This case is seen by some as setting a precedent for the interpretation of property ownership rights for unmarried couples.

English Law does not make any allowance for the intention of the parties or provide the basis for an agreement along the basis of a fair settlement for unmarried couples.  Traditional English Common Law principles of Property Law (based on Laws of Trusts) and the written agreement are used to determine in the event of a dispute or separation, exactly who should receive what proportion of a property in the event of a split. 

This is as a contrast to married couples where the law has developed to enable the courts to consider what is “fair” under all the circumstances and can therefore compensate spouses for a financial difference in circumstances.

This particular case rested on the fact that the property had been bought jointly and equally; and occupied jointly, and had been the family home for two children.  Ms Jones paid the deposit.  When Kennett left the family home after some 9 years, he left without any agreement as regards the future use of the property.  Mr Kennett had also constructed an extension at the property.

A joint life assurance policy had also been cashed in to enable Mr Kennett to buy another property in which to live.

Ms Jones brought up the two children without financial assistance thereafter from Kennett and paid for the mortgage and household expenses. 

Jones established via the County Court and the High Court that she should be allowed some 90% of the value of the property.  The Court of Appeal overturned this.

It was acknowledged by the Court of Appeal that Mr Kennett had not contributed anything towards the mortgage, child maintenance and property maintenance whilst not in occupation but he also had not sought any benefit or payment from Ms Jones for exclusive use and occupation.

On the basis of Common Law and the legal ownership in the absence of an agreement or basis to vary this, the Court of Appeal varied the apportionment and decided that a 50:50 split should be awarded in accordance with joint ownership.

The Supreme Court will therefore be setting the precedent for this aspect of apportionment until any change in the Law on Cohabitation is enacted by Parliament.  The numbers of couples cohabiting and not marrying is increasing year on year and is expected to amount to nearly some 4 million people within the next 20 years according to Government Sources.

Kernott v Jones [2010] EWCA Civ 578 

Matrimonial Valuations are prepared by Chartered Surveyors of the Network, both as joint independent experts (in accordance with the “Woolf Report”), as well as representatives for individual parties in matrimonial or for other property apportionment / dispute purposes.  

02nd May 2011