Cohabitees gain some legal ground after landmark ruling

Rarely does a dispute about a few hundred thousand pounds reach the Supreme Court. But such is the lack of clarity when it comes to cohabitating couples, that Leonard Kernott’s claim for a bigger share of the value of the house he shared with his partner went all the way to the highest court in the UK.

After five years, and at great cost in legal fees, the Supreme Court ruled today that Mr Kernott is entitled to 10 per cent of the value of the Essex bungalow he bought with Ms Jones in 1985 – not 50 per cent, as the court of appeal had previously ruled.

Mr Kernott moved out after the couple split up in 1993, and Ms Jones took on the mortgage cost and primary care of their two children for the next 13 years.

If Mr Kernott and Ms Jones had split up after being married or in a civil partnership, the case would have been clearer. But in legal terms, cohabiting couples are treated very differently with the financially ‘weaker’ partner often losing out. In cases of break-up or death of a partner, solicitors are obliged to look at the complexities of property law, rather than family law, to try and build a case for clients who were cohabiting.

Implications of thejudgment

But today’s ruling goes some way towards allowing judges to consider other aspects of the couple’s relationship, such as contributions made to family life, the relationship, or the house itself. Judges will now be able to consider the couples’ ‘intention’ and ‘fairness’.

“What’s never been particularly clear is whether you can look at a global range of factors. And now you can,” Julius Brookman, partner at Brookman, Solicitors told Channel 4 News. “It’s quite good for most of my clients – usually the girlfriends – who come in and have made a contribution over time, but it has never been put down in writing. Now these other factors can be taken into account.”

Read more: Your questions answered in our cohabitation Q+A

Cohabitation law in a ‘state of flux’

Today’s ruling was welcomed by family law specialists, but it still requires judges to make their own interpretations, and only deals with property. James Carroll, Co-Chair of the Law Society Family Law Committee and partner at Russell Cooke Solicitors, says the law remains in a “state of flux”.

“We still have to look at property law and how it’s interpreted by judges, when we’re speaking to people in a very serious situation,” he told Channel 4 News.

We’re not in a situation of being able to give them concrete advice – it’s still very much left up to individual judges. This causes confusion, stress, litigation and costs. James Carroll, Law Society Family Law Committee Co-Chair

“We’re not in a situation of being able to give them concrete advice – it’s still very much left up to individual judges. This causes confusion, stress, litigation and costs – and hence ultimately is damaging for families and children.”

Even the judgment delivered by the Supreme Court on Wednesday questioned why the government has not yet legislated to provide more guidance in the area of cohabitation, an area in which the Law Society and the Law Commission have previously called for reform.

Lack of awareness

What raises concern among family law specialists is the incorrect assumption among many cohabiting couples that they have rights under a ‘common law marriage’. “There is no such thing,” said Mr Carroll. “Living together or having children doesn’t give you rights or responsibilities, even if you’re able to establish who owns what.”

Housing charity Shelter has also voiced concern about how relationship breakdown can result in homelessness if there is no legally binding contract. “We know from the cases we see through our advice services every day that the breakdown of a relationship can be the trigger that pushes people into a spiral towards potential homelessness,” Roger Harding, Shelter’s head of policy, research and public affairs told Channel 4 News. “The reality is that it can happen to anyone.”

Couples are advised to enter into a cohabitation contract with detail about what happens if they break up, or if someone dies. If possible, mediation is also the preferred way to deal with any disputes.

Following today’s judgement, cohabiting couples have a greater hope of a fair division of their property. But for those who end up in the courts, the law can still cause a huge amount of upheaval for couples who chose not to tie the knot, Mr Carroll told Channel 4 News.

“It’s one area of law that can devastate clients,” he said. “The outcome of cohabitation can leave people absolutely destitute.”