Cohabitation Law: “Time for change”, say leading divorce lawyers

The Supreme Court will shortly hand down its long awaited, and highly anticipated, judgment in the case of Mr Kernott and Ms Jones. Mr Kernott and Ms Jones lived together for 10 years, had two children together, but very importantly never married.

Their circumstances reflect a growing social trend at a time when nearly half of children are now born outside of marriage. The timing of the judgment could not be more opportune after the coalition government has quietly shelved plans for the reform of the law applying to unmarried couples.

In July 2007, the Law Commission published a report on the consequences of relationship breakdown for cohabiting couples. It recommended new legislation allowing partners who lived together in certain circumstances to be able to pursue claims for financial relief against the other. The proposed remedies were similar (but not as extensive) as those available to divorcing couples.

In a written ministerial statement, last month justice minister Jonathan Djanogly said that the experience of similar reforms in Scotland “did not ….. provide a sufficient basis for change in the law”. Therefore the Government will not be implementing the Law Commission’s recommendations, at least for now. That leaves the law in England and Wales far behind many other jurisdictions where cohabitants have access to a legal framework designed to achieve fairness in a relationship breakdown. Mr Kernott and Ms Jones purchased a family home in their joint names in 1985 for £30,000.

They separated in 1993 when Mr Kernott left the home. Ms Jones remained in the property with the two children and continued to pay the mortgage and other bills. Mr Kernott contributed little, including according to Ms Jones, by way of child support. However, after leaving Mr Kernott purchased a new property for himself, which is now estimated to be worth £200,000. In 2008 Mr Kernott applied to the Court for his half of the former family home which was now worth some £245,000. The trial Judge awarded Mr Kernott only 10% of the value of the property, not least due to his lack of contributions over the last 15 years. The Court of Appeal agreed with Mr Kernott and awarded him 50%.

The majority of the Appeal Judges decided that is what Ms Jones and Mr Kernott intended at the time they purchased the property and that is reflected in the legal documents. The Court could find no reason to move away from an equal division despite the rather obvious unfairness to Ms Jones. The appeal of Ms Jones was heard by the Supreme Court in May of this year. The Supreme Court will have the option to effectively extend the remedies available to unmarried couples at a time when Parliament has chosen not to do so. The real question is whether the Supreme Court will allow a principle of ’fairness’ to determine the outcome in the same way it would if Ms Jones and Mr Kernott were married.

Stewarts Law’s lawyers, Matthew Humphries and Adrian Clossick, believe that reform of the law is long overdue, regardless of the impending decision of the Supreme Court: “The lack of commitment to law reform in this area by successive Governments leaves the courts having to apply outdated concepts of property law to family relationships. There is a general acceptance that the current law in this area leads to confusion, expense and results that are unjust especially to the increasing number of children from unmarried relationships”.

Matthew Humphries and Adrian Clossick are associates in the divorce department of Stewarts Law.