In May we referred to the Case of Jones v. Kernott which provides an example of how the Court divides a house jointly owned by an unmarried couple when the relationship breaks down. The Court of Appeal had awarded the property to both parties in equal shares despite them having split many years before and despite the woman having borne the brunt of maintaining the house, the mortgage and the children in the intervening years.

The Supreme Court has now overturned the decision of the Court of Appeal and reinstated the lower Court’s award of 90% of the property to the woman. The property had been bought in both names, but there was nothing to record how the parties intended to divide ownership. The intention to divide it in some way was clear, but in what percentages?

For some time it has been clear law that in these circumstances the percentages should be determined by reference to what the parties intended. The question is how does the law establish that intention when nothing has been written down and can the intention be said to have changed over time?

The following principles can be deduced from Jones v. Kernott:-

1. If the property has been bought in joint names, there is a presumption that it will be owned equally.

2. This presumption can be displaced by evidence that there was an intention to own the property unequally made either at the time of purchase or later.

3. This intention can be inferred from conduct and dealings between the parties.

4. Where it is clear that the intention has changed, but it is not possible to infer what that intention was, the Court is entitled to impute an intention that a fair share would go to each party having regard to the whole course of dealing between them in relation to the property.

5. Each case will turn on its own individual facts and whilst financial contributions will be relevant, other factors may be more relevant to decide the shares.

The Supreme Court’s decision that the woman should receive 90% was unanimous but was arrived at in different ways. Certain of the Judges decided that this was what the parties had intended based upon how they had behaved at the time of the separation and afterwards. Others felt that the evidence of intention from the parties’ behaviour was not sufficiently clear, but that the 90/10 outcome was still correct based on what was fair.

If the Court had brought about a result as far away from 50/50 as in this case by attributing an intention which was not actually in the parties’ minds, Jones v. Kernott would seem to be changing the law. It would seem to be giving the Court power to change the ownership of property in the same way that a divorce Court can based purely on what was later seen to be fair. Unfortunately the dichotomy in the way the case was approached by the different Supreme Court Judges makes it difficult to know whether Jones v Kernott really is a precedent for such significant change.