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Co-habitation between unmarried couples – judgement could set new precedent

The issues of property rights when parties are not married has long been a thorny issue and one which has presented family lawyers with many difficulties. The law does not provide the same rights for non-married couples as it does for married couples. People do not realise that there is no such thing as common law spouse and being in a relationship for a long time without marriage does not give them greater rights on separation.

It is still, on occasions, one of the more difficult types of case to advise a client on as to what right or claim a former partner has against a house owned jointly or in one person’s sole name. Over recent years, the Courts have assisted lawyers by making decisions which have provided guidance to us.

Our ability to advise clients may become easier when the Supreme Court provides its judgement in the case of Kernott v Jones. This hearing took place on 4th May and the Court’s decision is expected within a few weeks and it could set a precedent for unmarried couples.

Essentially, Ms Jones lived with Mr Kernott in a bungalow that they purchased in joint names. Thirteen years ago they separated and Ms Kernott remained living in the bungalow and continued to pay and reduce the mortgage for that time. Mr Kernott wanted his share of the house. He wanted half, Ms Jones wants to give him less in view of her mortgage payments. The Court at first Instance gave Ms Jones 90% of the house, the Court of Appeal overturned this and said Mr Kernott was entitled to an equal share of the house.

This decision may seem harsh but this is because there are strict legal principles that apply when looking at property ownership for unmarried couples and joint ownership means Mr Kernott can receive half the equity in the house. Only when couples are married does the court look at contributions and fairness and departure from equality.

The Supreme Court’s decision will therefore have important ramifications, not only for separating couples but also for unmarried couples buying a home together. It may be unromantic but it is extremely important now that unmarried couples ensure they obtain advice on their property ownership rights if they separate and/or a co-habitation agreement. From the clients I see, most wish with hindsight they had obtained some advice before purchasing their property.


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