Cohabiting couples share property rights

Unmarried couples who buy homes together could be entitled to an equal share of the property if they split up even if only one party has paid the mortgage and maintained the home, the appeal court ruled yesterday.

In what they said was a "cautionary tale" the judges ruled by a majority that Leonard Kernott was entitled to a half share in the home he shared with the partner he left 17 years ago.

A county court judge had awarded him just 10 per cent of the property last year, with the rest going to his former partner, hairdresser Patricia Jones, 55, who had maintained the home, paid the mortgage and brought up their two children since 1993. But two out of three of a panel of Court of Appeal judges ruled yesterday that when he left the house in Benfleet, Essex, it was accepted he owned an equal share and the former couple had not changed the situation since then.

In his ruling Lord Justice Wall said: "This is a cautionary tale, which all unmarried couples who are contemplating the purchase of property as their home, and all solicitors who advise them, should study." He said the "unusual" feature of the case was the period of delay before Mr Kernott sought his half share. During that period... he made no contribution to the property either by way of improvements, outgoings or mortgage payments."

The judge said there was no evidence about their intentions when they separated. "They do not appear to have discussed the matter," he said. Lord Justice Wall said the critical question was whether he could infer from the parties' conduct since separation that over time their 50-50 split would be varied so it was now 90 per cent owned by Miss Jones. "This is a point I have considered anxiously, and ... I simply cannot infer such an intention."

He said the passage of time had not altered the fact that when they parted, they had equal shares. "Cohabiting partners must, it seems to me, contemplate and address [the] unthinkable, namely that their relationship will break down and that they will fall out over what they do and do not own."

Lord Justice Jacob, dissenting, said Mr Kernott had made no mortgage payments on the house, allowing him to buy his own home. There was also the issue of the time lapse before his claim in 2006. "If one asks oneself how did these matters come to be, it is not impossible to conclude that they did so by a shared intention that the parties' interests in the house were to vary over time, rather than that his interest as a proportion of the value of the house should remain fixed."

The value of the property was put at £245,000 in 2008, with a mortgage outstanding at £26,664.