This analysis will examine the Supreme Court’s decision in *Jones v Kernott* [2011] UKSC 53, a key case concerning the determination of beneficial interests in property for unmarried cohabiting couples. The case is significant because it builds upon the principles established in *Stack v Dowden* [2007] UKHL 17, particularly regarding how a court should approach the quantification of shares when the parties’ intentions are not expressly stated. The analysis will outline the facts, explain the legal principles applied by the court, and consider the case’s impact on the law.
The Factual Background and Procedural History
The case concerned an unmarried couple, Ms Jones and Mr Kernott, who in 1985 purchased a property in their joint names. They made contributions to the deposit and mortgage, and lived there together, having two children. There was no express declaration as to how they held the beneficial interest. The relationship broke down in 1993, and Mr Kernott moved out. From that point, Ms Jones remained in the property with the children, paying all mortgage instalments and other outgoings herself. Mr Kernott made no further financial contributions towards the property.
Almost 14 years later, Mr Kernott sought to claim his 50% share in the property. At first instance, the judge held that the parties’ original intention to hold the property in equal shares had changed over time. Based on their conduct, particularly Mr Kernott’s cessation of contributions, the judge awarded Ms Jones a 90% beneficial share. The Court of Appeal overturned this, restoring the presumption of a 50/50 split. The case was then appealed to the Supreme Court.
The Supreme Court’s Judgment
The Supreme Court unanimously allowed the appeal, restoring the trial judge’s order of a 90/10 split in favour of Ms Jones. The leading judgment was given jointly by Lord Walker and Lady Hale, who clarified the principles for determining beneficial ownership in a domestic context.
The court affirmed the starting point established in *Stack v Dowden*: where a property is purchased in the joint names of a cohabiting couple, there is a presumption that they intend to hold the beneficial interest as joint tenants, meaning in equal shares. However, this presumption can be rebutted if evidence shows that the parties had a different common intention, either at the time of purchase or later on.
The Supreme Court set out a two-stage process. The first question is whether the initial presumption of equal shares has been displaced by evidence of a changed common intention. The court held that such an intention could be inferred from the parties’ conduct. In this case, the fact that the parties had cashed in a life insurance policy to allow Mr Kernott to buy his own property, combined with his lack of contributions for over a decade, was sufficient evidence from which to infer that their common intention had changed from the original 50/50 split.
The second question, once it is established that the intention has changed, is to quantify the respective shares. The court stated that the primary task is to try to ascertain the parties’ actual shared intentions, which can be inferred from their words and conduct. However, the key development in *Jones v Kernott* was the court’s guidance on what to do if a common intention on the specific shares cannot be inferred. In such a situation, the court is permitted to *impute* an intention to the parties. This involves the court deciding what is fair, having regard to the “whole course of dealing” between them in relation to the property (para 51). In this case, the court found the trial judge’s 90/10 split was a fair outcome based on the parties’ respective financial contributions.
Development of the Law
*Jones v Kernott* is best understood as a clarification and development of the principles in *Stack v Dowden*. While *Stack* had established the primary framework, there was uncertainty over whether a court could impute an intention to the parties, or whether it was restricted to inferring an intention based on evidence. Baroness Hale in *Stack* had stated that the search was for the parties’ actual shared intentions, and that “the court cannot devise arrangements which the parties never made” (para 61).
*Jones* clarified that imputation is a legitimate tool, but only at the second stage of the analysis (quantification). The court cannot impute an intention to the parties just to rebut the initial presumption of a 50/50 split; there must be evidence from which a change in intention can be inferred. However, once that hurdle is passed, if there is no clear evidence as to the new shares, the court can step in and impute an intention that is fair. This provides a practical solution for courts dealing with domestic disputes where parties often do not formalise their changing financial arrangements (MacKenzie and Phillips, 2022).
Conclusion
In conclusion, *Jones v Kernott* confirmed that the common intention constructive trust can be “ambulatory”, changing over time to reflect the parties’ conduct. Its main contribution to the law was to explicitly permit courts to impute a “fair” intention to the parties when quantifying their beneficial shares, in circumstances where an actual or inferred intention is not evident. While this provides flexibility and a mechanism to avoid unjust outcomes, it has also been argued that it introduces a degree of uncertainty into property law, moving it closer to the discretionary approach seen in family law for married couples (Gardner, 2012). Nevertheless, the case remains the leading authority on determining property rights for cohabitants in joint name cases.
References
- Gardner, S. (2012) ‘The ongoing evolution of the common intention constructive trust’, The Conveyancer and Property Lawyer, (1), pp. 77-83.
- Jones v Kernott [2011] UKSC 53.
- MacKenzie, J-A. and Phillips, M. (2022) Textbook on Land Law. 19th edn. Oxford: Oxford University Press.
- Stack v Dowden [2007] UKHL 17.
