Tuesday, May 03, 2011

Kernott v Jones: A matter for Parliament to decide?

Family Law Week reports today that the eagerly-awaited Supreme Court hearing in Kernott v Jones begins tomorrow (the headline of their report says today, but the report itself correctly says tomorrow). As stated on the Supreme Court website, the issue is:
Whether a court can properly infer an agreement by an unmarried couple, who hold a property in equal shares at the date of their separation, to the effect that thereafter their respective beneficial interests should alter.

and the facts are:
In 1983 the appellant and respondent started co-habiting in the appellant’s home, and went on to have two children together, in 1984 and 1986. In May 1985 the parties purchased a property in joint names, using the proceeds of sale from the appellant’s home and taking out a joint mortgage for the balance. They lived there together until they separated in 1993. The respondent then moved out and purchased another property. He made no further contribution to the payment of the mortgage on or to the upkeep of the property, or to the outgoings. In 2006 the respondent sought to realise his share of the property and in 2008 severed the joint tenancy. The appellant issued proceedings to determine the parties’ respective beneficial interests. The judge held that the appellant had a 90% share and the respondent 10%. This finding was overturned by the Court of Appeal which held that the property was held in equal shares by each party.

Obviously, the decision could have huge implications, but Rebecca Bailey-Harris and John Wilson question whether the Supreme Court should "take upon itself the task from which successive governments and the legislature have shied away, namely to take steps to cure the inherent injustices in the system, taking into account changing social conditions", in this article on Family Law Week. The issue is very reminiscent of the question in Radmacher v Granatino as to whether it was for the court or Parliament to make pre-nuptial agreements binding.

For what it's worth, my view is the same as it was regarding pre-nuptial agreements: that such an important change in the law should be a matter for Parliament to decide. Whilst I am in favour of reform of the law regarding cohabitees' property rights, I do not think that it is appropriate for a court, even the highest in the land, to undertake that reform. But then, what do I know?

As Bailey-Harris and Wilson say: "We must simply wait and see."

2 comments:

  1. I wish Parliament would decide SOMETHING.
    When you have such a different outcomes as appear in this case, how can we possibly give decent advice?

    ReplyDelete

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