Mortgage warning for unmarried couples as ex-partner gets half of house

Published 21st Jun 2010

Ex-boyfriend entitled to half share 17 years after split even though he did not pay mortgage, appeal court rules


Unmarried couples who split up could be in for a nasty shock about who owns their home: appeal judges have ruled that a man who left his partner 17 years ago was entitled to a half share in the house even though he had never paid the mortgage.

Despite years of separation and the fact that her former boyfriend hadn't contributed to the mortgage even when they were together, Patricia Jones was told her ex was entitled to 50% of the three-bed home in Thundersley, Essex.

"This is a cautionary tale which all unmarried couples who are contemplating the purchase of a residential property as their home, and all solicitors who advise them, should study," urged Lord Justice Wall. Cohabiting couples were advised to "contemplate and address the unthinkable … namely that their relationship will break down and will fall out over what they do and do not own".

It was Jones who paid the £6,000 deposit on the £30,000 semi-detached bungalow she bought with her then-boyfriend, ice cream salesman Leonard Kernott, in 1985. She paid the mortgage for their eight years together whilst he paid £100-a-week "expenses".

Kernott moved out in 1993; made no offer of maintenance for the two children, now both in their 20s; nor did Jones make a claim through the Child Support Agency. Kernott brought his own property in 1996 paying the deposit by cashing in a life insurance policy that the couple both owned and split equally.

"It's one of those cases where 'the man on the Clapham omnibus' or London Underground would be horrified because it seems to fly in the face of what might be perceived as natural justice," says Kerry Fretwell, a family law partner at Blandy & Blandy. The Law Commission in 2007 produced a report acknowledging the need for reform and proposing an overhaul of legislation for cohabiting couples. However, the law still remains unchanged.

The case was "a stark example of something that happens every day", says Steve Kirwan, chair of the cohabitation committee family lawyers' group Resolution. He says one of the three appeal judges disagreed with the ruling, as had the County Court, which offered Jones 90% of the value of the property. "They felt there was sufficient evidence to show that their affairs had changed with the passage of time, which was, from the point of view of a strict interpretation of the law, an almost impossible argument to put forward, however much sympathy was felt for it. That would have been judges making the law rather than enforcing it."

Jones's problems have arisen because she bought as "joint tenants". There are two ways of owning a property. Most cohabiting couples who buy together do so as "joint tenants" where they own the house 50/50 and, for example, the share owned by one partner would pass automatically to the other on death. If you own your home as "tenants-in-common" you can leave a precise share to whoever you choose – you state the exact nature of your share in a declaration of trust.

"Most don't consider what that means because nobody ever thinks that they are going to split up," says Mary Webber of Advicenow which runs the Ministry of Justice's Living Together campaign. "Only at the end do they think about it and, in this case, 17 years later."

The best advice is "to think very carefully about how you buy the house and what would be a fair division on a split", says Webber. "Even whilst you are together things change dramatically, for example, the relationship ends, or one of you starts putting more money in. You can very easily change a 'joint tenancy' into 'tenants in common' at any point."

When a relationship ends "you really need to tidy up all the loose ends straight away because they have a habit of tripping you up," she says. If you are unable to resolve the issue with your ex, try family mediation. Applying to the court should be a last option because it is difficult to demonstrate evidence to suggest anything other than a joint tenancy and can be disproportionately expensive.

Conveyancing solicitors should be under a greater duty to explain the ways to own a property but often they don't, argues Kerry Fretwell. She recently advised a client whose father had put down £100,000 on a new property and the couple signed a form saying they were to hold it as "joint tenants".

"It was one in a pack of forms. Neither side understood what it meant. As a consequence, my client is entitled now to much less than £100,000 – much to her and her father's surprise."

Source: ' Guardian '

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