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Appeal judges take strict approach to 50-50 rule in cohabitation claim

4 June 2010

Fairness is not the point, according to a Court of Appeal ruling that a former cohabitant was entitled to 50 per cent of a house he has not paid for or lived in since 1993.

Judges hearing cohabitation claims over a former couple’s home should only depart from the principle of equal interests where there is a clear indication of the joint shared intentions to the contrary, the Court of Appeal has held in a 2-1 majority ruling.

Giving judgment for the majority in Kernott v Jones [2010] EWCA Civ 578 Lord Justice Wall said there was “a total lack of evidence about the parties’ intentions” in this case and overturned the findings by the county court and High Court that the interests should shift to 90-10 in favour of Patricia Jones.

Ms Jones and Leonard Kernott had lived together unmarried for eight years in the house they had jointly bought in 1985 in Thundersley, Essex, before separating in 1993. Since then Mr Kernott has lived in his own property, leaving Ms Jones to pay for the remaining mortgage on the house and fund the upbringing and education of their two children.

“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,” said Wall LJ.

“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.

“In my judgment, [Mr Kernott] has a 50 per cent interest in the property, and both the judge and the deputy judge were wrong to conclude otherwise,” Wall LJ found.

The dissenting judgment by Lord Justice Jacob, however, suggests that the issue of evidence of joint intention is far from closed.

Jacob LJ’s view was that the district judge had correctly applied the law and that his findings should not be interfered with. his case is another cry in the dark for a new law providing more certainty in respect of property disputes between unmarried couples,” he said.

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