Anne Thistlethwaite, specialist Family Lawyer at AMD Solicitors considers the implications of a recent court decision.
We all thought the courts were strictly interpreting the rights of ownership for jointly owned property. This followed a Court of Appeal decision in the summer of 2010, in a case where Ms Jones and Mr Kernott owned a property jointly and were not married.
Mr Kernott successfully claimed one half of the value of the property even though the parties had been separated over many years and he had made very little contribution to the property in those years. The property had also gone up in value considerably in that time. This was in line with previous cases which had decided that if a property is in joint names, if there is no deed of trust that says otherwise, the ownership will be equal.
Now, Ms Jones has successfully appealed to the Supreme Court, and Mr Kernott’s share has been reduced to 10% of the value. The court concluded that after the parties had separated, their intention to share the property jointly had changed even though the legal title hadn’t changed and remained in joint names. The court based this on the conduct of the parties after their separation taking into account a number of factors such as their financial contributions. Each case, will therefore, depend on facts, to enable the court to decide what shares were either intended or will produce a fair outcome, based on the whole course of dealings between the parties.
Does this give certainty when a property is in joint names? No and so it is more important than ever to draw up a formal declaration when you buy a property with a partner, setting out how you will share the proceeds of the property on sale and how to recognised unequal contributions. A specialist solicitor can draw up a binding agreement setting out a couple’s financial responsibilities to each other and their shares in a joint property. So if you are a joint owner of a property it would be advisable to seek specialist advice now, so as to avoid uncertainty and heartache in the event of a future separation.
In some cases the property is bought in the name of one party only. The first issue then, is to ascertain if it was the intention that the other party would have an interest in the property at all. If so, what is that interest. There is no presumption of joint ownership. The court would have to look at the whole course of dealings between the parties in relation to the property.
AMD Solicitors have offices at Henleaze, Clifton and Shirehampton and offer an initial free 30 minute appointment on all family issues.