Wednesday, November 09, 2011

Jones v Kernott: Appeal allowed

The Supreme Court has allowed the appeal in Jones v Kernott, restoring the order of the county court (i.e. that Ms Jones was entitled to a 90% share of the property). The judgment was unanimous. Lord Walker and Lady Hale gave the lead judgment. Lord Collins agreed with Lord Walker and Lady Hale, and added some reflections of his own. Lord Kerr and Lord Wilson agreed with the result, but reached it by a different route.

For those unfamiliar with the facts of the case, see here.

Paragraph 51 of the lead judgment sets out the principles to be applied:
"In summary, therefore, the following are the principles applicable in a case such as this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests.

(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity.

(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.

(3) Their common intention is to be deduced objectively from their conduct: “the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party” (Lord Diplock in Gissing v Gissing [1971] AC 886, 906). Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden, at para 69.

(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, “the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property”: Chadwick LJ in Oxley v Hiscock [2005] FAm 211, para 69. In our judgment, “the whole course of dealing … in relation to the property” should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties’ actual intentions.

(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4))."
Here, the intentions of the parties did change, and it was logical to infer that Mr Kernott's interest crystallised in 1995 (paragraph 48). The calculation of their shares on this basis produced a result so close to that produced by the judge that it would be wrong for an appellate court to interfere (paragraph 49).

The full judgment may be found here, and a press summary, here.

24 comments:

  1. Absolutely brilliant news - i can rest at night knowing my own case is sorted

    ReplyDelete
  2. He get's 10% and she get's 90%.

    So, apart from not marrying, men in relationships now must ensure not to have joint marriages in order to stop being screwed by the courts.

    The option of marrying with a pre-nup I don't agree with and won't be doing. Alternatively writing down a pre-moving in together agreement would seem appropriate. Not that it would be legally binding.

    I suppose the moral of the story is live apart together and rent one of your properties out to Romanian and Pakistani imigrants (talking from experience). A bit sad really, and yes, I do agree with Leonard's comment,

    it feels like the law will always side with the woman.
    End Quote
    Leonard Kernott

    Especially given the recently family just published also.

    http://www.bbc.co.uk/news/uk-15651540

    ReplyDelete
  3. Should have read joint mortgages.

    ReplyDelete
  4. Graham P/David: (Are we having a little identity crisis?) I don't think there is anything in the judgment favouring women over men - certainly not in the principles mentioned above.

    ReplyDelete
  5. I am not sure it is a coincidence the family justice review, Miller and McFarlane, White and White, Rademayer, the one about conduct in 1974, the one where the man came back from the war and wasn't to get access to his children. My case. Just a few examples. As I said, it seems the judges are sexist. It seems the women win in court.

    ReplyDelete
  6. The women I know who have gone to court have won and the men I know who have gone to court have lost also.

    ReplyDelete
  7. Oh dear, the old "the system is biased against men" chestnut. Yawn.

    ReplyDelete
  8. But how many couples actually wait for over 14 years before settling their property affairs? Very few in my experience. So the judgment is actually of very limited significance. Where the parties are dealing with things more or less at the time of separation, as is generally the case, Kernott has no application and is easily distinguised.

    ReplyDelete
  9. jonathanj: Not necessarily. They may have had a different intention when the property was purchased, or changed their intention prior to the separation, as per principle (2).

    ReplyDelete
  10. Ummm, David, I don't want to sound patronising but unless you know thousands of men and women that have gone to court (and preferably the merits of each case) then your point is negligible.

    ReplyDelete
  11. DB the only counter argument to that is that 70% of divorces are petitioned by women. I think the percentage of AR petitioners being woman is higher still.

    ReplyDelete
  12. OK, I think we're getting a little off-topic now.

    ReplyDelete
  13. DB I do agree that there should be more reporting on outcomes of family law. A point SW makes and many others and I agree with them. If you don't agree on perception being reality, then you need to show what reality is and have some openness as to outcomes, even after 10 years later outcomes for all. Etc.

    If the figures aren't available, I go on what I've seen - less than a thousand cases admittedly, but usually (always) the woman 'wins' in the family law courts in england and wales and the man loses. Sadly I have also known men commit suicide also after losing in these courts (a few times), but not women.

    ReplyDelete
  14. Payne v Payne on international relocation, as another example, I could go on and on looking them up but I think I've made my point. Indeed I can't think of one major case of precedent in this area that hasn't been 'won' by the woman. Open to be corrected though, especially if it makes me smile by it's obscurity.

    ReplyDelete
  15. Have you not read my last comment? Any more off-topic comments will be deleted.

    ReplyDelete
  16. there's also the small matter of the woman making a far greater financial contribution than the man.
    but i suppose it's convenient to disregard that when we want to bang the 'poor victimised men' drum.

    and anyway that was a woman reading the judgment. hah! end of.

    ReplyDelete
  17. SW, your legal argument skills show no bounds.

    ReplyDelete
  18. Sorry, but if you rent a property for years and it goes up in value and then the landlord sells it, you don't ask him (or her) for the equity on the basis that you paid the mortgage. That's daft. Am I the only one who thinks when she read it out it sounded ridiculous.

    If you buy shares, you are entitled to the dividends, end of.

    ReplyDelete
  19. p.s. As we are doing legally argument, "Hah, na ner na ner na!"

    ReplyDelete
  20. David, I've not noticed that you've done any 'legally argument'.

    ReplyDelete
  21. I was being sarcastic.

    For an analogy, Dragon's den. They invest a sum for a percentage of the company and expect a return in their investment. As did Leonard, you do when you buy a house, who can honestly say elsewhere.

    need to go and do other things now, keep the good blog going though. People are not necessarily wrong if they disagree with you - or the court though. They may have valid reasoning for why they think how they do and can disagree with people and be friends. Thanks anyway.

    ReplyDelete
  22. Goodbye David, and thanks for the kind comment about the blog.

    ReplyDelete
  23. but the point was that 50% of the interest at separation was near as dammit 10% of current value wasn't it?
    and it isn't like he got screwed as he had the proceeds of a shared insurance policy to buy his own property which he still has. it really isn't a great example of unfairness by our misandrist society.
    *sigh*

    ReplyDelete

Thank you for taking the time to comment on this post. Constructive comments are always welcome, even if they do not coincide with my views! Please note, however, that comments will be removed or not published if I consider that:
* They are not relevant to the subject of this post; or
* They are (or are possibly) defamatory; or
* They breach court reporting rules; or
* They contain derogatory, abusive or threatening language; or
* They contain 'spam' advertisements (including links to any commercial websites).
Please also note that I am unable to give advice.