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Supreme Court awards female cohabitee 90 per cent of home's value

9 November 2011

The Supreme Court has allowed the appeal by a former cohabitee that she should get 90 per cent of the former couple's home, restoring the trial judge’s decision to depart from the traditional assumption that interest in the property should be split 50-50.

Giving the lead judgment, Lady Hale said the trial judge had correctly found that the couple’s intention after they separated “did change significantly” from their initial plans when they moved in together to “provide a home for themselves and their progeny”.

When they separated, the couple sought to sell the property but eventually took it off the market, preferring to cash in a life insurance policy the proceeds of which allowed Mr Kernott to buy his own property.

“The logical inference is that they intended that his interest in [the property] should crystallise then,” Lady Hale said. “Just as he would have the sole benefit of any capital gain in his own home, Ms Jones would have the sole benefit of any capital gain in [the property].

“Insofar as the judge did not in so many words infer that this was their intention, it is clearly the intention which reasonable people would have had had they thought about it at the time. But in our view it is an intention which he both could and should have inferred from their conduct,” she said.

She went on: “A rough calculation on this basis produces a result so close to that which the judge produced that it would be wrong for an appellate court to interfere.”

Patricia Jones and Leonard Kernott lived together unmarried for eight years in the house they had jointly bought in 1985 in Thundersley, Essex.

They separated in 1993, with Mr Kernott living in his own property and leaving Ms Jones to pay for the remaining mortgage on the house and fund the upbringing and education of their two children.

The ruling overturns the Court of Appeal ruling last year by Sir Nicholas Wall, now president of the Family Division, who reduced Ms Jones’ claim to 50:50.

The judgment was heavily criticised at the time because it appeared to ignore the fact that there were two children and that Mr Kernott had moved out and bought another house.

Lord Justice Wall explained that there was “a total lack of evidence about the parties’ intentions” in this case to reverse the presumption that they intended to divide their interest in the property by other than 50:50

“The critical question is whether or not I can properly infer from the parties’ conduct since separation a joint intention that, over time, the 50-50 split would be varied,” he said. “This is a point which I have considered anxiously, and at the end of the day I simply cannot infer such an intention from the parties’ conduct.”

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Divorce Marriage & Civil partnership