New Law on Cohabitants Property Rights

10th November 2011
New Law on Cohabitants Property Rights image

New Case Law Affecting Cohabitants Property Rights

The long awaited Judgment in the case of Jones -v- Kernott was handed down yesterday (9th November 2011) by the Supreme Court. The law concerns cohabitants’ property rights and could have far a reaching effect with regard to couples intending to cohabit.

The case of Jones -v- Kernott concerned a couples’ entitlement to a property which they purchased in 1985. The couple separated in 1993 with Miss Jones continuing to live with the couples’ two children at the property. Miss Jones continued to pay the mortgage.

The Court of Appeal had previously stated that since the Deeds indicated the couple owned the property on a 50/50 basis then that is exactly how the property should be held and divided. However, the Supreme Court has now overturned the Court of Appeal decision and have held that Mr Kernott should only have a 10% share of the property.

The Supreme Court came to its decision on the basis that 10% was seen as a “fair” share of the property for Mr Kernott in all the circumstances of the case.

To date, the law relating to the division of property has always been very different depending on whether a couple marry or whether they simply choose to cohabit. If a couple marry and then subsequently divorce the Court has an absolute discretion under the Matrimonial Causes Act 1973 (as amended) as to how to divide up the property and indeed all the assets of the marriage and the parties. The Court in the course of the divorce, divides the assets of the marriage on the basis of what is considered reasonable in all the circumstances of the case with the welfare of any minor children of the family being paramount.

By contrast, the general rule to date with cohabiting couples has been that any property held in the sole name of either party remains with that party and any jointly owned property is split 50/50. A cohabitee to date has always had an “uphill struggle” to prove that he or she should have a greater share of the property where the Deeds say the property is held jointly and has been left to argue his/her case under the very complicated law relating to trusts. A cohabitant seeking to claim a greater percentage of a jointly owned property usually has to prove the existence of some kind of constructive, implied or resulting trust to be successful. To date, it has not been open to a cohabitant to simply suggest that splitting the property 50/50 would be “unfair”. The case of Jones -v- Kernott however suggests that it might be possible now to argue that the property of cohabiting couples should be divided on the basis of what is fair in much the same way as the property of married couples is divided under the Matrimonial Causes Act in the course of divorce.

Experts in family law however do feel that in the absence of very clear legislation from Parliament and notwithstanding the decision in Jones -v- Kernott, it is still important that couples record their intentions formally and in writing and review those arrangements in the light of any subsequent changes in their circumstances to avoid costly and expensive litigation should they choose to separate in the future.

If you require any further information regarding this or any other area of family law then please contact our family team:-

Anita Toal, telephone 01775 722261 or email anita.toal@maplessolicitors.com


Who Will You Be Entrusting With Your Conveyancing? image

Who Will You Be Entrusting With Your Conveyancing?

WHO WILL YOU BE ENTRUSTING WITH YOUR CONVEYANCING WORK?  THE CHOICE IS YOURS!

Are the selling agents or perhaps the mortgage broker pushing or trying to persuade you to use a particular conveyancing firm? If so, we would strongly recommend that you ask the following pertinent questions so that, armed with all relevant facts, you are better able to make a reasoned decision:-

Why?

Are the agents receiving a kickback or referral payment from the firm concerned? Using a firm in cahoots with an estate agency inevitably leads to a potential conflict of interest. Will such firm be working in your best interests or simply those of the introducer? Here at Maples we pride ourselves on being completely independent and we consider the idea of a referral fee both abhorrent and unethical. We much prefer to obtain our work based on past performance and recommendation.

How Much?

Do not be misled by a seemingly attractive basic figure initially quoted but be sure to enquire about and read the small print for add ons for so called “extras” (such as mortgage costs, preparation of a stamp duty land tax return, telegraphic transfer fees and the like) which suddenly spring up at a later date and only become apparent in the firm’s final statement. Ensure that you are comparing like for like. Here at Maples, we give you a complete and all inclusive rundown of our professional charges and all disbursements at the outset, with no hidden extras.

Where?

Is the firm local or, as is more likely, based in a completely different part of the country? If the latter, then the transaction will, without a doubt, be dealt with by post, phone or email and lack any personal contact. Here at Maples we are fully accessible, like to meet our clients to discuss and advise upon the transaction face to face and share with you the benefit of our wealth of local knowledge and experience.

Who?

Will you actually be aware as to who will be dealing with the matter for you or will you simply be a reference or matter number at the end of a phone in a firm dealing with volume conveyancing? Here at Maples, you will be assigned to your own experienced and dedicated conveyancer who will be responsible for and deal with the transaction for you from beginning to end, with a high level of personal service throughout.

Making a hasty and bad appointment could seriously prejudice or delay your transaction and cost you dearly. Getting honest answers to these four simple questions at the outset could make all the difference.

To discuss any Conveyancing matters please contact either Claire Smith or Anita Zaborniak of our Conveyancing Team or telephone the office 01775 722261.

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Testimonials

Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

Daven Naghen LLB

"I felt the service I got from Maples was excellent and was very honest all through the process. I would recommend Maples as a first class Solicitors group"

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

This is the second time we have used Mike Pepper at Maples Solicitors in the sale of our house. We cannot praise Mike enough for the highly efficient and professional service that he has provided us with. He is by far the best solicitor we have ever worked with, and the service that he has provided us with has gone far and beyond anything we have ever experienced. We have found the whole process to be a very relaxing experience.

Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!

Anita Zaborniak

We found it a pleasure to deal with Anita Zaborniak, she was most helpful and informative and kept us up to date with the progress of the purchase of our new home. If we were to move again we wouldn’t hesitate to use Maples again.