Unmarried couples to get same Rights as married couples

[caramelwaffle]

Just heard a news clip on the radio about a Case heard/decided yesterday that will point to giving unmarried couples the same rights as married couples (precedent/case law).

Has anyone heard further?

No but I'm very interested to hear more.

Ah

Decision made at the Supreme Court.

Must post and dash.

This one?

www.guardian.co.uk/law/2011/nov/09/court-rules-property-rights-unmarried

Are you thinking of the case settled in the Supreme Court this week of Kernott and Jones? That was a case of a divorced couple who split 13 years ago. He was claiming a part share in the sale of a property they jointly owned but which he hadn't contributed towards since the split. Originally the court had awarded him a large share in the property. The Supreme Court cut the share down.

It would be very difficult, in practice, to give unmarried couples the same rights as married ones. What constitutes 'a couple' rather than a 'a casual relationship' is not that easy. Living together for a set period? Taking a holiday together? Producing children?

My mistake... Kernott and Jones weren't married, they co-habited. But they did jointly own the property and his name was on the deeds. That's significant, I think. If the property had been in her sole name or his sole name, it would have been a different outcome.

Co habiting couple bought house had kids. She put down deposit and paid most of mortgage. Split up 8 yrs later. Fast forward 13 yrs she continued to pay mortgage he didn't pay any child support. Mortagage and house never signed over to her.
House now worth +£250k.
According to daily mail he's on benefits ( with nice car and obligatory plasma tv) and he wants his half.

First court case gives him half she appeals etc current court case he ends up with 10%.

Sounds fair to me although she should have avoided this by sorting it out at the time.

What I heard was that the lawmakers want to go back and look at the proposals made a few years ago as this case has highlighted that the law is unsatisfactory.

The difference between a married couple and a co-hab couple is that the 'sharing' aspect of marriage takes into account non-paid efforts that go into a marriage and historical and future finance (savings / inheritance due) , where co-hab relationships only look at financial aspects that are clear and have evidence - there is no recognition of partnership, you may as well be housemates.

A lawyer could explain it better.

Jones v Kernott does not give common law marriage rights in terms of what happens if you die etc. It only affects whether you might get a share in a property you cohabit.

What the courts do is first look at who is on the deeds. Then they look at how the parties have contributed to mortgages, housing costs, bringing up children and so on to see if the presumption made from the deed can be rebutted. So in this case, the property was co-owned so you started off with a presumption of a 50:50. But on the facts of the case - boiling down to that the woman had contributed so much more to the mortgage over the years - the courts inferred/imputed that the parties' true intentions were a 90:10 split.

As I understood it, the difference in the two situations is that, in the case of a co-habiting couple, the legal contract they took out when they bought the house is binding - therefore if the house is in joint names, they have half a share of the house each regardless of other factors.

It is also true in the case of married couples, but where the couple is married, the court has discretion to look at what is 'fair' in the situation and change the terms of the agreement accordingly.

No one in their right mind would consider the original outcome of the case 'fair', but the judge was in no position to change the ruling because of the original contract and the fact of their having been no marriage. This is the part that needs to be changed.

Is that right?

It hardly amounts to equal rights, I think. Useful judgement if you buy jointly and then split up as it deals with when the parties' shares in the joinyly owned property crystallised - in this case when they cashed in an insurance policy so he could move out and buy a place of his own.

Seems to me it doesn't have huge general implications for most cohabiting couples ... except it shows the Supreme Court's willingness to unpick the letter of the legal relationship and substitute something more equitable where just to do so.

Actually I think the original judgment was 90:10 and that got overturned by the C of A - this restores the original judgment but on slightly different grounds.

Cogito the courts would use the same process for a sole owner - just you start off with a presumption of 100:0 and that has to be rebutted (rather than start off with a presumption of 50:50).

In all the cases on this, though they talk about imputing intentions and looking at non-financial contributions and all this lark, the final decision of the split tends to be exactly in proportion with what the parties have contributed to the mortgage. So Supreme Court judgement would have been the same either way I reckon.

Yep missedith - all courts but the C of A thought there was enough justification to rebut the 50:50 presumption and give the 90:10 split.

That is the case, yes.

(that is the case that I heard being mentioned on the radio)

"Cogito the courts would use the same process for a sole owner - just you start off with a presumption of 100:0 and that has to be rebutted (rather than start off with a presumption of 50:50)"

Not an unmarried sole owner, surely? If I own a house and a boyfriend (or anyone else for that matter) comes to live with me, maybe even paying some housekeeping towards bills and mortgage... and then we split up... he has no claim on the property does he? Unlike if I owned my house, we got married, and then the property becomes 'marital assets' and he has more of a claim over time.

I'd be appalled if the first scenario applied.

So where a property is owned 50/50, and financial input is entirely equal, and there were children, would there be a favour in the split toward the main carer?

Would there be any rights for the main carer to remain in the property?

I believe that at present if one party leaves the property it has to be put on the market within 6 months.

I bloody well hope that this doesn't mean same rights for unmarried couples! No romantic notions about superiority of marriage at all on my part, however, the notion that people should be forced into a 'marriage' like relationship if just cohabiting is awful.

CogitoErgoSometimes, I don't think this case would have gone anywhere had the couple not bought the house in joint names.

They bought the house togetherproperly on paper. Had he just been living there, and moved out later, I don't think it would have reached ANY court.

Cogito, I don't think that the boyfriend in your example would be able to get any interest in the property because he wasn't there from the beginning, he moved in later. However, if he moved in when you bought the house (in your own name) and paid a bit towards housekeeping/the mortgage the court would try to work out whether you two intended that to get him an interest in the house. You could argue you never intended for him to actually get part of the house, that it was just a "gift", a helpful contribution towards your living costs. That might well be true but unless you have something written down to the contrary it's his word against yours. Basically they have to try to mindread! Increasingly the courts are willing to find that there is an interest - so if he paid 5% of the overall mortgage/housekeeping costs he would get a 5% interest.

Your question about the boyfriend moving in later is an interesting one. The law used to take the firm stance that they'd only look at the situation at the time the mortgage was taken out. Now we've seen with this case they're becoming increasingly flexible, looking at how situations change.

There have only been a handful of these cases, and they have tended to come to a fair conclusion, I think, where someone has contributed for decades as if they were in a marriage and is left with nothing. But you're certainly right that we're in dangerous territory...

If you want the rights and protection marriage affords, get married or go to a lawyer and get everything drawn up watertight.

I agree entirely with Wamster.

But it's all about provable financial contributions, isn't it, uphillbothways. Just living with somebody and being their partner and bringing up children is not enough to entitle an ex-partner to a claim? True or not, I don't know that is why I am asking.

This ruling is about property only, a woman (or man) wouldn't be entitled to maintenance or their partner's other assets like they do in marriage.

realhousewife, one of the judges in the big name case on this topic (Baroness Hale in Stack v Dowden) named looking after the children as one of the many factors that should be taken into account when trying to work out the percentage split. In practice that's never been the deciding factor.

This is just a land law perspective though, I don't know anything about family law which might give the carer more rights...

I think the decision was the correct one.

I don't think that this means a big change to the way anything is done already TBH.

I would also not want a situation where someone you were casually shacked up with (no kids) became entitled to half your stuff.

Wamster - Hale in Stack v Dowden said:

"Many more factors than financial contributions may be relevant to divining the parties' true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties' relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses."

But you're right that they courts have in practice relied on financial contributions practically exclusively to make their decision.