Is there ever a ‘right time’? … Or t’is the season of goodwill?!

November 22, 2011 12:31 pm Published by

Unfortunately it is a well-known fact that over the Christmas period, the shared relationship or partnership of two people can come to breaking point. Pressure caused by many factors such as money, in laws, children and even the office party can result in the unfortunate breakdown of a relationship.

Of course the decision to separate is not an easy one or one that it taken lightly. Once the decision has been made, whoever makes that decision, when is the right time to take that things one step further and formalise the arrangement?

You might think that seeking legal advice is unnecessary, you still get on well with your former partner so surely there is no need to spend money on getting legal advice.

Unfortunately, whether married or not, the difficulties caused by delaying that decision can be the increased.

The recent decision of the House of Lord in Jones v Kernott only re-enforces this. The case involved an unmarried couple who met in 1981, had two children together and bought a home together. The home was purchased in 1985 for £30,000. Ms Jones’ provided the deposit of £6,000 and the rest was funded by way of a joint mortgage. They both paid the monthly mortgage instalments until they separated in 1993. Mr Kernott moved out and later bought his own home. Ms Jones’ remained in the home they owned together and continued to pay the mortgage.

It wasn’t until 2006 that Mr Kernott sought to realise his interest in the home they owned together. Ms Jones, having paid the mortgage since separation and having paid the initial deposit made an application to the Court for an order that she owned the entire property.

Ultimately, the case was decided by the Supreme Court and Mr Kernott was awarded a 10% share in the property. The Court held that the parties’ common intention had changed after their separation to the extent that it was inferred that the proportions of the property that they owned had changed. The Court based this decision on the fact that they had taken the property off the market for sale in 1995 and cashed in an insurance policy to enable Mr Kernott to buy his own property.

This decision highlights the need for unmarried couples to discuss and agree their intentions at the outset to avoid uncertainty, and, more importantly to review and update those decisions when their circumstances change. If you fail to do so you could find the Court making the decision as to what your intention was. Uncertainty can be avoided by having a trust deed drawn up by the solicitor who deals with the purchase of the property for you and, as and when circumstances change to reconsider the document and decide whether it needs updating.

If a decision is reached by a separating couple, married or otherwise, it is advisable that they seek legal advice to formalise that agreement to avoid a situation arising like the one Mr Kernott and Ms Jones found themselves in whereby they spent 4 years and no doubt, thousands of pounds in legal fees trying to resolve.

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This post was written by Demelza