Marriage break-ups are covered by extensive legislation and case law and so married couples who seek advice about entitlement to property and financial matters can usually get reasonably clear advice about where they stand. The law for divorcing couples allows the court to consider all the circumstances and then do what is fair. However, the same can not be said for cohabiting couples.
Many commentators are calling for statutory reform in this area of law and want laws to be introduced by Parliament which govern the relationships of unmarried couples and provide them with financial remedies should the couple separate. Scotland has already introduced such laws, but until this happens in England and Wales there may well be many more cases like the Jones V Kernott.
In 1985 when Ms Jones and Mr Kernott bought their house, it was commonplace to buy a property jointly without an express declaration of trust. Nowadays, where a property is bought in joint names, joint owners are required to indicate how they wish to hold their property. Therefore disputes in respect of beneficial interests will inevitably reduce over time.
However, the situation Ms Jones and Mr Kernott faced could still be a possibility for thousands of older couples who do not benefit from the updated conveyancing practices which are now in place.
Couples should therefore not assume that the legal pieces of paper that show co-ownership of a property are the end of the story.
Prepare a simple declaration
In light of the Supreme Court decision, couples should probably prepare a simple declaration of trust explaining how they want to own a co-purchased property.
Review declaration following changes in circumstances
Should there be a change in a couple’s circumstances then they should review their initial declaration. This will avoid a judge at a later stage deciding on what he/she is fair.
Get legal advice
Unmarried couples who buy property together should probably take legal advice before they buy a property, take legal advice if they split up, and if they do not want to end up like Ms Jones and Mr Kernott they would be wise to put their intentions in writing in a deed of trust.
Most people will not believe that they need to take these steps to protect themselves. Unlike wills or pre-nups there is a general lack of awareness surrounding the right of cohabitants, for example the urban myth of rights and entitlements for common law spouses is surprisingly still prevalent.
Taking these simple precautions could well save thousands of pounds in legal fees and years of heartache whilst you wait for a decision.
