RUGBY Offices

Private Client Department, Address: 16 Church Street, RUGBY, CV21 3PW, Telephone: + 44 (0) 1788 579 579, Fax: +44 (0) 1788 570 949

Conveyancing Department, Address: 26 Regent Street, RUGBY, CV21 2PS, Telephone: + 44 (0) 1788 551 611, Fax: + 44 (0) 1788 551 597

Commercial/ Wills, Trusts & Probate Departments, Address: The Robbins Building, 25 Albert Street, RUGBY, CV21 2SD, Telephone: + 44 (0) 1788 579 579, Fax: + 44 (0) 1788 552 888

LONDON Offices

2nd Floor Berkeley Square House, Berkeley Square, London, W1J 6BD, Telephone enquiries: +44 (0) 2078876590, Fax number: +44 (0) 207 8876001

BANBURY Offices

Strathmore House, Waterperry Court, Middleton Road, BANBURY, OX16 4QD, General Telephone enquires: + 44 (0) 1295 270999

Dangers for Unmarried Couples

They say hindsight is a beautiful thing, and in particular the Court of Appeal judgement handed down in Jones v Kernott is one such significant case for all un-married couples out there. The case highlights the stark dangers and reality of unmarried couples purchasing property together in the absence of a declaration of trust in place clearly setting out the proportions in which they own the property for when it comes to selling it in the unfortunate event of the relationship breaking down. Short of couples in long term relationships actually getting married or entering into civil partnerships, a declaration of trust is the only way in which cohabitants can save themselves the anguish  and expense of lengthly legal battles as has occurred in Jones v Kernott. 

To briefly set the scene, Miss Jones and Mr Kernott met in 1980 and lived together in Miss Jones’ caravan.  Their first child was born in 1984 and in 1985 they purchased a property for £30,000 with the aid of an interest only mortgage with an endowment policy  in their joint names and £6,000 from the sale of Miss Jones’ caravan. They owned the property as joint tenants despite the fact that they had both made different financial contributions to the purchase price and did not have any cohabitation agreement such as a declaration of trust in place. The couple were happy, having had two children and Mr Kernott contributing £100 per week to pay towards the mortgage and bills along with Miss Jones’ earnings to cover the deficit, and paying £2,000 for and building an extension to the property enhancing the value by 50%.  However, 8 years following the property purchase in 1993 the couple separated and Miss Jones remained in the property with the children and maintained the property from 1993 to 2006 during which time she made various repairs to it and added fences and a gate.  Mr Kernott made no contributions whatsoever towards the property nor the children.

It was in 1995 that the property was put on the market however it failed to sell. Mr Kernott purchased his own property in 1996 having cashed in the joint names endowment policy with Miss Jones and using his half of the payment to pay the deposit on his new home.  In 2006 the children had left and Mr Kernott sought his half share of the value from Miss jones. In 2007 Miss Jones made an application under the Trusts of Land and Appointment of Trustees Act 1996 claiming that she owned the entirety of the property and if not then, she had an interest in both the property in question as well as the property that Mr Kernott went on to purchase alone.

At the trial in 2008, the Judge decided a 90% majority split in favour of Miss Jones, leaving Mr Kernott with 10% of the value of the property.

Mr Kernott appealed this decision and the matter proceeded to the Court of Appeal which  saw a drastically different turn of events.  Two out of three of the judges held in favour of Mr Kernott deciding that the couple purchased the property as joint tenants without any other express intention and there had been no change to that ownership over the years with the exception of arguments over maintenance and contribution.  At present this is the rule to be followed until such time the Supreme Court may see the matter differently in the upcoming trial which is due to take place on 4 May 2011.

This is the first appeal to reach the Supreme Court on the appointment of beneficial interests in property owned by unmarried couples therefore the implications of the ruling could be significant.  Should the Supreme Court see fit to uphold the Court of Appeal, then every matrimonial dispute over property will become a minefield of arguments revolving around consideration and maintenance.  The effect will also impact by giving rise to a number of property disputes outside the realm of family law. For instance, if a parent and child purchase a property as joint tenants with the intention of the parent to have occupation having contributed a deposit to the purchase and the child paying the mortgage, where over time does the proportion of ownership shift? The most difficult question is how does the proportion of ownership be calculated over time?


They say the problem of hindsight is that it is just that, but let this case be a cautionary lesson to all unmarried couples contemplating the purchase of property as their home. At Brethertons we would highly recommend that all cohabitees must ensure that they address all issues prior to purchasing a property together and not afterwards.