Court confirms that courts may infer/impute a change in the parties’ beneficial shares after separation.
Introduction
In Jones v Kernott, the Supreme Court confirmed that where two parties separate, the court may infer or impute a change in their beneficial shares if their actions show altered intentions.
This continues to be a leading case regarding the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) and equitable ownership.
Background to the Case
The couple were unmarried and purchased a home in their joint names, raised their children there, and shared both the mortgage and a loan. However, their relationship ended, and Mr. Kernott moved out. The couple also cashed out a shared life insurance policy in order to allow Mr. Kernott to put down a deposit around his own home.
Ms. Jones and their children continued to live at the home. Over a decade later, this home had increased significantly in value and Mr. Kernott sought to claim his interest in it. In response, Ms. Jones countered that even though they were both owners, she held the entire beneficial interest in the property, under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA).
The court noted that the house was purchased jointly as a family home, and therefore a presumption arose that they intended to share the beneficial ownership as well. However, Ms. Jones successfully rebutted this presumption by pointing out that during the intervening years, when Mr. Kernott had lived away, he had not contributed anything to mortgage and maintenance, and his financial support for the children had very limited. Furthermore, the property’s increase in value had occurred after he moved out. In line with Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, the court held that the initial presumption of joint beneficial ownership had been successfully rebutted.
However, because there was no clear indication regarding how to divide the beneficial shares, the court had to try and decide what their intentions, as “reasonable and just people,” would have been, had the parties thought about it at the time. Apparently, this meant a 90% share for Ms. Jones, and 10% for Mr. Kernott.
Disappointed with the findings, Mr. Kernott successfully appealed, and the Court of Appeal found in his favour. In their opinion, the property should have been split equally.
Ms. Jones then appealed to the Supreme Court.
The Supreme Court’s Decision
Relying on Stack v Dowden, the Supreme Court found that the parties’ intentions had changed after separation. Therefore, they allowed Ms. Jones’ appeal and restored the original court order (confirming that she had 90% of the beneficial interest).
Why Jones v Kernott Matters
The judgement shows that when a property is held in joint names by an unmarried couple, but there is no express statement of how to share it, the following principles apply:
- Where a family home is purchased in joint names, there is a presumption that the parties own the property as joint tenants in law and equity.
- This presumption can be rebutted by evidence that their intention was different (either when the property was purchased, or later)
- The court should try to infer the intention by objectively considering the conduct between the parties
- Where the parties had different intention at the outset, or changed their intention later, the court is entitled to impute an intention – in other words, they’ll decide what share each party is entitled to, based on the whole course of dealing between the parties in relation to the property
- Each case will turn on its own facts; the court will take into account financial and other factors when deciding what was intended, or what is fair.
Practical Implications for Clients
- When purchasing a property together, clarifying the beneficial interest at the outset can manage expectations and help avoid expensive and protracted litigation.
- A co-owner may still be able to claim a beneficial interest, even if they moved out many years ago and have not contributed anything to the mortgage since.
- Financial contributions to the home will not be the court’s only consideration. They will look at the facts of each case.
Practitioner Takeaways
Family lawyers must carefully assess a client’s situation, particularly where property is concerned. If the parties were unclear or changed their intentions, the court will try to objectively decide what the intention is by considering the parties’ conduct. However, if the court is not able to do this, there is a risk that they will impute an opinion, which may not accord with the client’s wishes.
Conclusion
Jones v Kernott remains a landmark case and offers clients and family lawyers step-by-step guidance regarding how to assess the division of beneficial ownership, where an unmarried couple’s intentions were not clear.
By: Tiffany Carpenter
31/10/2025