I reported briefly on Kernott v Jones in this post, shortly after the judgment was published (for a far more comprehensive report see this post by Nearly Legal). Now that I have had more time to consider, I thought that I would look at this important case in a little more detail, at least in relation to its implications.
It seems to be generally accepted that the decision of the Court of Appeal was legally correct, but that is not the same as saying that it was the right decision in the circumstances. It has been said that the case re-establishes some certainty in this difficult area, but I'm not so sure that it does. The case does not make new law, relying as it does on the House of Lords' test in Stack v Dowden, yet two judges in the lower courts and one Lord Justice in the Court of Appeal, applying that test, considered that the respondent was entitled to a 90% share in the property. In other words, they considered that the facts were sufficient to infer a common intention that the parties' interests in the house were to vary over time. Lord Justice Wall (at paragraph 58) said that the mere passage of time was not sufficient to displace the equal interests, but it was not just the passage of time, but the fact that during that time the respondent had paid the mortgage and all outgoings on the property.
Given the above, would it be right to advise a client in a similar position to the respondent that she had no hope of recovering more than 50%? I'm not sure that it would, save in the unlikely case that that the facts matched Kernott v Jones exactly. There must still be a good possibility that a judge would be prepared to make the necessary inference to award more than 50%.
But what of fairness? I know that Baroness Hale in Stack made it quite clear that it is not the job of the court to search for the result which it considers to be fair, but isn't that the job of the law? It seems to me that many people would consider the result in Kernott to be unfair (Nearly Legal calls it "a somewhat harsh outcome", and it certainly raised a few media eyebrows (see e.g. here)), and if it is then should not the law be changed? Of course, there will also be many who have no problem with the result (after all, the respondent may have been paying everything, but she did have the sole use of the property), so 'fairness' is always arguable, but shouldn't it be the yardstick against which any case is measured?
As I have made clear here previously, I am in favour of the introduction of property rights for cohabitees. Broadly, I support Resolution's proposals, which are set out (in PDF format) here. As will be seen, they propose that cohabitants meeting certain eligibility criteria should have a right to apply for certain financial orders if they separate, and that the courts should only be able to make a financial award if that is fair, having regard to all of the circumstances.
Of course, one man's fairness is another man's injustice...