I bet I can guess your age!

Just tell me what you think of the Supreme Court’s decision in Jones v Kernott, and I’ll tell you how old you are (roughly).

Answer the poll, now!

Now that the profession has had time to digest the Supreme Court’s decision in Jones v Kernott, which was handed down in November 2011, opinion appears to be divided as to whether the outcome was a step forward in the protection of cohabitees’ property rights or an unhelpful precedent that muddies the traditional property law rules.  In my experience of discussing this topic with other practitioners, those more recently qualified tend to favour the former position while the more experienced generation take the more cautious line.

In a nutshell (and it is a big case to squeeze into a small nutshell, perhaps a coconut would suffice), the couple, who were never married, bought a house in 1985 in joint names and valued at approximately £30,000 but made no express declaration of trust.  In 1993, Mr Kernott moved out and ceased all contributions to the mortgage and upkeep.  Fast-forward 14 years to 2007, and Mr Kernott wants to realise his interest in the property prompting Ms Jones to make an application under TOLATA 1996 for a declaration that she was the sole beneficial owner.  What the Supreme Court decided was that there could be an intention inferred and/or imputed from the parties’ actions that can affect the way they hold the property, even if no express intentions can be shown.  On that basis, they decided that from the time that Mr Kernott moved out the couple no longer intended to hold the property as joint 50/50 owners and awarded Mr Kernott a meagre 10% interest.

I’m simplifying things of course but there is a bigger picture I am trying to look at here.

Experience versus Youth

The younger generation appear to analyse the Jones v Kernott problem from a more idealistic view point.  They respond more to the facts of the case and in particular Ms Jones spending 14 years funding the mortgage and household and see the SC decision as a fair outcome, giving her the larger share of the jointly owned property.  Those more experienced tend to dwell more on the specific application of the law and express concern at the idea of asking the court to impute an intention that might not have been there.

Perhaps this comes from their increased familiarity in dealing with such issues or disinclination on the part of the youngsters to get beyond the basic facts and really analyse the decision (the case, and the Supreme Court decision is not easy reading).  That said, the five Supreme Court Justices who made the decision were none of them spring chickens and they unanimously decided (alright Baroness Hale differed on the reasoning) that the property was not to be treated as 50/50 in these particular circumstances.  I don’t think anyone would argue that they did not give proper consideration to the law.

Evolution of Social Ideals

Cohabitation is on the rise.  People are choosing not to marry or are marrying much later in life.  To some people cohabitation is as acceptable, if not preferable, to marriage, and they put no stock in the idea that the quality of the relationship is in any way contingent on its status.  Strengthening the rights of cohabitees might be seen as a logical step to bring the law in line with this evolution of social ideals and consequently is much more palatable to a generation that has grown up in a world where non-traditional relationships are socially acceptable.  To those more traditionally inclined the decision in Jones v Kernott could be viewed as legitimisation of the non-married couples status beyond that of simply two people who purchased a property together.  One wonders if the decision would have been any different if there had been no children involved (there were) and so the property was, to some extent, considered as a family home.

I’m not suggesting that all newly qualified family lawyers are pro-cohabitation and anti-marriage (I qualified last year and got married this year).  Nor am I suggesting that the elder generation of practitioners frown on everyone living together outside of wedlock.  I am simply commenting on a trend that has caught my attention and would like to extend the debate.