There has been a steady increase in recent years in the number of couples who are choosing to live together without marrying or entering into a civil partnership. Many individuals mistakenly believe that by living together they acquire legal rights or protection as a "common law spouse". This is not the case. Unmarried cohabitants are potentially in a very vulnerable position upon relationship breakdown. Many are unaware of the legal implications of cohabiting without being married or forming a civil partnership and do not take legal advice to protect their property interests.
As long ago as 31 July 2007 the Law Commission published a report on the financial consequences of cohabitation and recommended reform of this complex area of law. However, on 6 September 2011, the Government confirmed that it did not intend to take forward the Law Commission's recommendations for reform of cohabitation law before the next general election. This leaves cohabiting couples no better protected and exposed to developments in Judge led case law which is continually evolving.
In Kernott v Jones, the parties were unmarried, had two children and purchased a house together in 1985 in joint names, with each contributing in different ways to the improvement of the property. The parties separated in 1993 and Mr Kernott moved out, into a property of his own, in 1996. Some ten years later in 2006, Mr Kernott claimed a half share in the property despite the fact that he had not lived there or contributed to it financially in the intervening period. In 2007 Ms Jones applied to the court claiming that she was entitled to 100% beneficial ownership of the jointly owned property.
After numerous hearings in the lower courts, the Supreme Court decided in 2011 that the property should be divided 90/10 in favour of Ms Jones. This was upon the basis that the court inferred a change in the couple's intentions as to how the property was to be held after Mr Kernott moved out in 1996.
This decision has been welcomed by many as being fair. However, the length of time it took and the substantial costs involved in reaching this decision could not have been foreseen by either Mr Kernott or Ms Jones when they purchased the property together in 1985.
Couples who are planning to purchase property together must therefore ensure that they take independent legal advice from the outset to ensure that their positions, which may be conflicting, are legally protected. If there is any change in the parties' circumstances then the legal documents should be amended accordingly. This will go a long way to avoiding future uncertainty and legal costs, until such time as the government of the day chooses to clarify the law in relation to cohabiting couples.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.