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To Cohabit or not to Cohabit?

Many may reason ‘it is ok, we will be protected because in the eyes of the law we have a ‘common law marriage’’.

Did you know that there is no such thing as a common law marriage in England and Wales? Unfortunately, there is no clear law for cohabitees, unlike in situations such as divorce or civil partnership. The law in the case of separation of cohabitees is mainly lead by case law.

There are several ways a property can be held such as sole ownership (a property registered in one person’s name) or joint ownership (usually a property held in two peoples names).

Can it safely be said that if a property is owned in joint names that the cohabitees own it in equal shares? Not necessarily, as can be seen in the recent case of Jones v Kernott 2011. This is a Supreme Court Judgment (the highest Court in the land), having been through several courts and appeals.

The facts – The parties Mr Kernott and Miss Jones were in a relationship for 13 years and had two children together. In 1993 Mr Kernott moved out of the property owned in joint names. He went on to buy a property in his sole name. Having left the jointly owned property, Mr Kernott made no financial contribution towards it. In 2006 Mr Kernott sought to release his share of the property. He sought 50%.

Would equal division be fair when Mr Kernott made no contribution for 13 years?

Where a property is held in joint names, the starting point of the Court is a presumption of equal division. This can be displaced by establishing that the parties had a different common intention either when they purchased the home or later. Common Intention can be deduced from conduct.

In the case of Mr Kernott, the Court concluded that the common intention changed when he left the property and purchased another in his sole name. The Court looked at the value at the time of separation and gave Mr Kernott his 50% share, which equalled around 10% of the property value today.

The moral of the story – It is always best to seek legal advice whatever your situation, whether you are thinking about/are cohabiting or separating/have separated.

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