Kernott & Jones – A Cautionary Tale
The story of Kernott and Jones is one that should be heard by all cohabiting couples, but sadly it is not a great love story, but rather a salutary tale. 
This is a cautionary tale, which all unmarried couples who are contemplating the purchase of residential property as their home, and all solicitors who advise them, should study.” So said Lord Justice Wall, introducing his judgment in Kernott v Jones [2010] EWCA Civ 578.
The case involved Mr Kernott and Ms Jones, who entered into a relationship in 1980 and began cohabitating in 1983. They bought a home together jointly in 1985.  They separated in October 1993 and Mr Kernott moved out of the family home. Ms Jones remained there with their children.
There was some discussion between the two of them in October 1995, when Mr Kernott wished to realise his share in the property, and it was placed on the market for sale. However, as there was no interest in it, Mr Kernott and Ms Jones agreed to cash in a joint life insurance policy so that Mr Kernott could use his half of the proceeds to purchase an alternative home.
The question which came before the Courts some 15 years later, was whether Mr Kernott could still rightly demand a 50% share of the jointly owned home, despite not having contributed to it for 15 years.
You may be surprised to learn that when a property is purchased together, if there is an express declaration (a note on the legal paperwork that states whether you own the property as joint tenants or tenants in common) then the legal starting point is that you are bound by this declaration, regardless of how many years have passed. 
In the case of Kernott & Jones, there was no express declaration and therefore the question before the Court was, “In the absence of an express declaration, can the parties move away from the presumption that the property was held equally?”
Ms Jones was arguing that she should receive a larger share, as she had been solely responsible for the mortgage and maintenance of the property for 15 years.
The Supreme Court has now confirmed that while there is a presumption that a property should be held equally if it is in joint ownership, this can be overturned if evidence can be provided to show that this was not what the parties intended.
To show this, you need to prove that there has been a change of agreement between the parties as to the interests each of them have in the property, either by express agreement (both of you agreed verbally or in writing) or by proving that you can infer such a change by looking at how you both acted.
In the case of Kernott & Jones, cashing the life insurance policy to enable an alternative home to be purchased and Mr Kernott no longer financially contributing to the property provided the evidence required for the court to infer a change to the original agreement.
If it can be shown that the intention has changed, then there may be scope to move away from a 50:50 division. In this case, Ms Jones was awarded a 90% interest in the property.
This case highlights the importance of agreeing with your partner how a property is to be dealt with, both at the outset when you buy it, and later following a separation. It would be unwise to assume that you will be entitled to a larger share just because you have made a greater contribution to the mortgage and the upkeep of the home. The onus will be on you to supply evidence to prove this. 
If you are contemplating separation, discuss the terms with your partner at the earliest opportunity. A Separation Agreement can be drawn up to record the terms agreed, providing certainty and protection for both parties.
If you are contemplating setting up home with your partner, make sure you discuss what should happen if you separate. Cohabitation Agreements (also known as Living Together Agreements) can be drawn up to record responsibilities during the relationship, and determine what will happen with the family home, finances, furniture and any other assets, should the relationship break down. Family Law Consultancy can provide advice and assistance on these matters.