The Supreme Court has delivered a keenly awaited judgment in the case of Jones v Kernott on the rights of unmarried couples who buy a property in joint names.

The case concerned how the courts should decide who owns what in the common situation where a family home is bought in both names by people who are not married – but the principles are likely to be applied even more widely.

Until now the courts would tend to divide equally assets that were bought as “joint tenants” – a technical term that, of course, would probably mean little to those who might be signing up to that regime when they buy their home.

But the Supreme Court has determined in the case of Jones v Kernott that whilst this remains the presumption, it is a presumption that is relatively easy to shift. In those circumstances, the court has the job of seeing if it can work out in what proportions the parties actually intended to own the home. If the court cannot work that out by reference to evidence, the court can decide what it would be fair to allocate to each party, bearing in mind their overall conduct.

The Supreme Court made it clear that each case will turn on its own facts, which may well mean that former couples caught in this difficult situation might find themselves facing the high costs of going to court. What will often make most sense is to take early advice and enter into a realistic negotiation to find a solution before positions become entrenched and matters get out of hand. Daniel Coombes, a partner at Family Law in Partnership LLP experienced in dealing with issues of this nature commented “It is a tragedy that people facing the financial blow of separation also have to overcome the potentially devastating further blow of expensive and demanding litigation. This case took four years to work its way through the system and even after this decision, there is no clear guidance on this issue for unmarried couples.”

In the case of Jones v Kernott the Supreme Court restored the order of the county court that the common intention of Ms Jones and Mr Kernott had changed and that Mr Kernott was entitled to only a 10% share of the family home.

The Supreme Court has today delivered a keenly awaited judgment in the case of Jones v Kernott on the rights of unmarried couples who buy a property in joint names.
The case concerned the correct approach to calculating beneficial interests in a property where the legal title to the property is held in joint names by an unmarried couple but there is no express statement of how the beneficial interest is to be shared.
Before today’s judgment the approach of the courts was to uphold the principle of joint ownership in the absence of a statement to the contrary. But the Supreme Court has today determined that where an unmarried couple purchase a property in joint names, the presumption that they intend to own the property jointly in equity can be rebutted not only by a statement to that effect but also by evidence that it was not, or ceased to be, the common intention of the parties to hold the property jointly. The court should look to ascertain the actual intention of the parties, expressed or inferred. The Court made it clear that each case will turn on its own facts: financial contributions are relevant to determine what share of the property was intended or fair, as are many other factors. In the case of Jones v Kernott the Supreme Court restored the order of the county court that the common intention of Ms Jones and Mr Kernott had changed and that Mr Kernott was entitled to only a 10% share of the family home. The Supreme Court determined that the split of 90% and 10% was fair and reflected what the Court held to be the common intention of the parties by virtue of their course of conduct over the years.