Pictured above: Angela Davis
Family lawyer Angela Davis of Nottingham firm Berryman is
warning starry-eyed unmarried couples to think carefully before
buying a home together, after a landmark decision by the Court of
Appeal in a case involving a former cohabiting couple and their
family's home.
The couple jointly purchased the property in 1985, but separated
eight years and two children later. Despite Miss Jones assuming
full financial responsibility for the property from that date, 12
years after her separation from Mr Kernott, the Court of Appeal
judge ruled her former partner was still entitled to half the value
of the property.
Angela Davis explains: "Lord Justice Wall, President of the
Family Division gave leading judgement in the joint ownership of a
property case determined by the Court of Appeal, warning that this
is a cautionary tale which all unmarried couples contemplating
buying a residential property as their home should study.
"The property had been purchased in their joint names and there
was nothing on the facts of the case to displace the presumption of
equality, even though Mr Kernott's claim on his share was some 12
years after he left.
"Although the decision may seem extremely harsh and unfair, it
is correct and highlights how important it is for couples to think
through all the possibilities when they purchase a property
together, rather than going into something so major with 'rose
tinted glasses'," comments Angela. "As Lord Justice Wall said, the
purchase of residential accommodation is perhaps the single most
important financial transaction for an individual in their lifetime
and cohabiting partners must address the unthinkable, that their
relationship will break down and that they will fall out over what
they do and do not own.
"All too often relationships do fail. If a couple are
married the case will be determined by the divorce Courts which do
have wide discretionary powers, but these do not extend to
unmarried couples. For that reason it is all the more important
that cohabiting couples do take detailed legal advice. It is all
too common for family lawyers to deal with the aftermath of when a
relationship breaks down and for instance one party has made the
greater contribution towards the purchase of the property by
providing the initial deposit.
"There are simple steps that could be taken at the outset to
safeguard such a contribution but all too often this is overlooked.
I would urge anyone in such circumstances to seek advice and
consider a Declaration of Trust and/or Living Together
Agreement."
The case of Miss Jones and Mr Kernott saw Miss Jones assume full
responsibility for the mortgage, property maintenance and upkeep,
whilst Mr Kernott purchased another property in his sole name after
he had left and did not make any contributions following
separation. Miss Jones and the children remained at the
property. In 2006, Mr Kernott sought payment of his half share and
Miss Jones went on to seek a Declaration that she owned the
property in its entirety. In the lower Courts, it was decided Miss
Jones had a 90 percent interest in the property and Mr Kernott's
share was reduced to 10 percent. However, Mr Kernott appealed
to a Court of Appeal.
In making his ruling, Lord Justice Wall said the facts of the
case were only unusual in that there was such a long period of
delay between separation and Mr Kernott seeking his half share.
Berryman is a Midlands' law firm based in Nottingham, which
provides an extensive portfolio of legal services within four key
areas: Business Services, Property & Construction, Insurance
Services and Private Client. It employs over 130 people and has 18
partners. For more information, T: 0845 310 7200, or visit www.berryman.co.uk