Pictured above: Rachel Brennan
When couples own property jointly it is not always clear whether
jointly means the same as equally, as Rachel Brennan, specialist
family solicitor at Nottingham law firm Berryman, explains.
"Any co-habiting couple quickly finds upon separation that the
myth of 'common law marriage' is indeed precisely that and any
dispute between them as to their respective shares in a property
will be dealt with under complex property and trust law, rather
than in the matrimonial courts.
"A series of recent cases have led to fertile ground for lawyers
rather than clarity for the newly separated couple, as to how the
court will determine what share of the proceeds each will receive
if and when their former home is sold.
"The problem arises where there is an absence of an express
agreement between the parties when they purchase the property as to
whether they intend to own it in equal shares. Joint purchasers are
now invited record the percentage shares in which they will hold
the property upon purchase. Difficulties have arisen when, for
whatever reason, the conveyancing documentation remains silent as
to the percentage shares in which the parties intend to own the
property.
"Earlier this year the Court of Appeal gave a ruling in Jones v
Kernott which should assist both practitioners and couples alike in
predicting the likely outcome of a dispute over property following
separation.
"In the case, the couple had lived together from 1981 and
purchased a property in joint names in 1985. They had two
children and continued to live together at the property until 1993
when they separated and Mr Kernott moved out. Ms Jones had
made a greater contribution towards the deposit but Mr Kernott made
the greater contribution towards an extension. When Mr Kernott
moved out of the property he ceased to make any further
contribution towards the payment of the mortgage, endowment or any
utility bills. Instead, he purchased an alternative property in his
sole name. He paid the mortgage and all the outgoings at his new
property. In 2008 he sought his 50 percent share of the property.
The first judge awarded Ms Jones 90 percent of the equity in the
property on the basis that the intentions of the couple had changed
over the years and it was just and fair that Ms Jones, who had
continued to pay the mortgage should own the greater share.
"On appeal it was concluded that the court was not permitted to
consider what was 'fair' but instead had to be convinced that the
principal of their ownership in equal shares had been rebutted and
their intentions had changed. It was concluded that it was
impossible to infer from the parties' conduct that the equal shares
of the property each held at the date of separation had now changed
such that Ms Jones should hold 90 percent of the equity. In the
absence of any such intention from their actions Mr Kernott was
awarded a 50 percent share.
"The finding is helpful in that the Lords have unequivocally
ruled that it is not within their authority to seek a fair outcome
as such and, referring to a previous landmark case have established
that any bid by a joint owner to establish an interest of more than
50 percent will 'involve the steepest of climbs usually resulting
in a failure to reach the summit'.
Rachel Brennan is a solicitor in the Family Law team at
Nottingham law firm Berryman, where she is an Associate. She is a
member of Resolution and deals with a full range of divorce, and
children matters, co-habitation disputes, Separation Agreements,
Pre and Post Nuptial Agreements. For further information contact
Rachel Tel: 0115 945 4611, email:
rachel.brennan@berryman.co.uk.
For more information about Berryman Solicitors, please visit
their website: www.berryman.co.uk