The Supreme Court has taken the opportunity to explain the case of Jones v Kernott (2011)
Leonard Kernott and Patricia Jones bought a bungalow in 1985, in joint names for £30,000. Patricia Jones put down the deposit of £6,000 and the mortgage was in joint names. They lived at the property with their two children until October 1993. Mr Kernott put down a deposit on a new property in his sole name. Mr Kernott and Miss Jone surrendered a joint life insurance policy and the proceeds were divided equally.
After that, Mr. Kernott made no contribution to the household. Twelve years later he sought to obtain his share of the bungalow, which remained in the parties’ joint ownership. By then the property was worth £245, 000 with equity of approximately £218,000. The Supreme Court had to decide whether Mr Kernott had a 50% share in the property. The Supreme Court decided that the starting point is that the division of the money follows the legal position. If they own the property jointly in law, then that will be the starting point with regards to the share of the benefit.
This presumption can be put aside if the parties had a different common intention when they purchased the home, or they later changed their common intention with regards to their shares.
The common intention is to be observed from their conduct. If the Court can infer from what was done what their intention was. To enable the Court to make such an inference there needs to be some evidence, what was said at the time or was obvious from their actions.
If there is no evidence the Court can then impute what it consider to be fair in the circumstances. So a lack of evidence does not mean that the Court will revert to the starting position of 50/50. The Court can make it’s own decision of what it considers to be fair in the circumstances. This is approaching the judicial discretion the Courts already have in Matrimonial Law.
In this case the Supreme Court decided that it was unfair to give the parties a 50/50 share and they restored the original trial judge’s declaration that Mrs Jones was entitled to a 90% share of the equity. The Supreme Court has confirmed that, where there is a lack of evidence of common intention, it can impute a fair common intention.