The case concerns the contact arrangements for a two-year old boy who has a gay father and a lesbian mother, who lives with her partner. The boy lives with his mother, but the father, who was a sperm doner, wants to pay a fuller role in his son’s life and is seeking contact with him; however, the mother claims that prior to conception, the father had agreed that the mother and her partner would be the main parents of the child and that he would not seek to enforce his paternal rights.

This is an important case, so the Court of Appeal has reserved its decision until an unspecified later date.

The article looks at both the Government’s recent announcement that it intends to compel the courts to ensure that each parent is able to see their children regularly (or even equally) following a separation or divorce and the Norgrove report which advised against a presumption of equality for parents.

So who is right?

Whilst the number of divorces in the UK is generally on the decrease, divorces amongst the over 60s is on the rise. But why?

I recently had an article published on this issue in Mature Times, and it can be read here.

The couple had been married for over 25 years and had two adult children. Some years ago the wife had a windfall of some £500,000 on the lottery. She used part of these funds to purchase a home for herself and her family, including her husband. He lived in the family home for about three years and the couple then separated.

Within the divorce proceedings, Mr Mostyn was asked to decide whether the lottery win was a matrimonial asset or not. If it was, arguably it was available for division in the usual way with the starting point being a 50:50 split. If not, then arguably it could be ring-fenced.   

The Judge decided that at the time it was received it would have been a non-marital asset, but that immediately it had been used to purchase the family home, that element of the windfall had been converted into a marital asset. Luckily for the wife, the Court used its discretion to take into account the fact that the husband had made no contribution to this asset and had only lived in the house for three years. He was therefore awarded only £85,000 out of a potential £500,000 asset. 

The question is, where does this leave us?  

The case seems to suggest that if the wife had not used the money for her family, she would have been able to retain the money on divorce. Taking it one step further, does it not suggest that a husband using money to gamble - rather than to provide for his family - could then benefit from the subsequent windfall at the expense of his family? Even more concerning, does it not suggest that whilst the legal profession are doing their best to avoid conflict, this decision rather suggests that the arguments over who should be financially responsible for the family should start whilst they are still happily married?

This important judgment has understandably provoked a lot of interest and concern amongst lawyers and the general public alike (particularly if you happen to be a lottery winner!)

Following the publication of the judgment, I was asked by The Daily Telegraph newspaper to comment on the decision (click here to read it) and on Tuesday 18^th October discussed the case and its implications with Vanessa Feltz on her BBC London radio show.

We will have to wait a while to discover the full consequences of this ruling, but it may very well encourage individuals to keep their assets separate from their spouses/partners.

If you have any concerns about non-matrimonial property and/or how the judgment may affect you, please contact me at amanda.melton@mablaw.com.

The new rules set up an EU-wide system for facilitating the recovery of maintenance payments when one parent lives abroad and refuses to provide financial help to the child(ren) and/or the former spouse. However, the definition of ‘maintenance’ is much wider than periodical child or spousal maintenance payments: ‘maintenance’ has been interpreted by the European Court of Justice as relating to the “needs” of the spouse or child(ren). This means maintenance could cover, for example, transfers of real property.

The vast majority of maintenance claims involve children and, in the past, it has proved difficult to recover unpaid child maintenance from a parent living in another EU country. However, the new rules will now enable the recovery of maintenance in cross-border situations, meaning parents will no longer be able to flee abroad to avoid making payments.

In most cases, a decision on maintenance obligations in one EU country will be enforceable in another one without any further procedure, such as registration. This should speed up procedures and save parents money. The rules will also set up laws on co-operation between central authorities, to provide assistance in relation to maintenance applications.

However, whilst the new rules simplify the enforcement of maintenance agreements and orders across the EU, there are potential problems. For example, what will happen in relation to decisions between an EU member state and a third state? Could English courts be prevented from making a maintenance order if couples have entered into a foreign prenuptial agreement or marital contract?

We will have to wait and see the true impact these new rules will have on the English courts.

This new requirement, which has been added to the Family Procedure Rules 2010 and will come into force on 6 April 2011, will require divorcing couples to arrange a mediation information and assessment meeting at their own expense. Couples whose divorce is publicly funded already have to mediate.

If the parties refuse to attend a mediation meeting together, separate meetings can be held. However, if the mediator or either party believes that mediation is unsuitable in their case, or if there is a risk to anyone’s safety, the parties can be exempted and the case will continue to court. This new protocol will not apply to cases involving domestic violence or child protection – these cases will progress straight to court.

The Government hopes that the use of mediation will allow couples the opportunity to amicably resolve their disputes, without the need for costly, stressful and time-consuming court hearings.

Whilst this move towards mediation should be broadly welcomed, it is not an overarching solution to all family disputes. It can only work if both parties fully embrace the process and come to the table as equals; it cannot work if one party wields more power, or if one party is being deliberately obstructive. If mediation doesn’t work, it will inevitably add more cost, stress and time to the divorce process – which is exactly what the Government is trying to avoid.

Regardless of whether proceedings are conducted through mediation or through the courts, divorce and separation will always be an emotional and painful event. It is therefore essential that couples consider all of their options before making such a decision.

If you would like to know more about your options, or want to discuss how the mediation process works, please contact me at amanda.melton@mablaw.com.

The Law Commission is examining the status and enforceability of marital property agreements made between spouses or civil partners (or those couples considering getting married or forming a civil partnership.) Currently, such agreements are not enforceable in the event of divorce or the dissolution of a civil partnership, though the courts may take them into account in determining what ancillary relief is appropriate. The high-profile Supreme Court ruling in Radmacher v Grantino recently brought this whole issue to the fore– click here and here for full details.

The consultation paper proposes a number of options for reforming the law in this area, and is seeking views on whether (1) couples should be able to enter into a legally binding agreement not to seek ancillary relief in the event of divorce or dissolution of their civil partnership, and (2) whether such agreements should encompass all of a couple’s property, or contain only terms relating to pre-acquired, gifted or inherited property.

The Law Commission has provisionally proposed that if nuptial agreements are introduced into law (and thus enforceable), (1) the parties to the agreement should have taken legal advice, (2) the agreement should be in writing, (3) the party seeking to enforce the agreement must have made full and frank disclosure of their financial situation, (4) the agreement should provide for the needs of any children of the family, and (5) the agreement should not leave one party reliant on state benefits.

The consultation closes on 11 April 2011, though the Law Commission is not expected to make any recommendations for reform until 2012.

If you would like some legal advice on marital property agreements, please contact Amanda Melton at amanda.melton@mablaw.com, or Jeremy Abraham at jeremy.abraham@mablaw.com.

Pre-nuptial and post-nuptial agreements have rarely been out of the news since the Supreme Court ruling in Radmacher v Granatino was handed down on 20 October 2010. In this case, the Supreme Court held that the Court of Appeal had been right to conclude that it was fair to hold Mr Granatino to the terms of his pre-nuptial agreement with the heiress Ms Radmacher, meaning he received only £1m instead of £5m in the divorce settlement. Click here and here for full details of the case.

The ruling was significant in that it represented a major step towards pre-nuptial agreements becoming legally enforceable under English law, which would bring England and Wales in line with many other EU countries. The general consensus amongst family practitioners is that the Law Commission will propose legislative reform to make pre-nuptial (and post-nuptial) agreements legally binding for the first time.

However, there is some way to go. Once the consultation has concluded, the Law Commission is not expected to publish its recommendations until sometime in 2012.

In the meantime, if you would like some legal advice on pre-nuptial or post-nuptial agreements, please contact Amanda Melton at amanda.melton@mablaw.com, or Jeremy Abraham at jeremy.abraham@mablaw.com.

Baroness Deech shared the view that the current state of the law is unsatisfactory but showed greater concern for the gender issues, and offered the opinion that a Commission was a poor alternative, taking too long and covering moral as well as legal issues.

Where John Hemming and the speakers were agreed was in the observation that Parliament is noticeably reluctant to engage in this area, crying out for reform. Why is that and what form should that reform take?

To spark off your comments, my own view on the former is that its not a vote winner but a potential vote loser and any MP raising their voice on the subject in Parliament would have to anticipate a gruelling examination of  his or her private life as such a debate hots up!

Anyway, with only the Law Commission’s report in 2011 on marital agreements to look forward to as a signpost to reform, if you’re not happy with the current law on marriage, separation and divorce, this Parliamentary Group looks like one of the better focus points at the moment, so contact it, attend its meetings and express your views – it can’t do any harm! As far as I know, until the movement gathers pace, your contact point is John Hemming MP,  House of Commons. See you at the next meeting.

The Prenuptial Agreement was prepared in Germany, the Wife’s country of origin. It provided that there would be no provision for each other in the event of a subsequent divorce. The prime reasons for entering into the Agreement were that Ms Radmacher’s father wanted her to do so (the suggestion being that if she did not have a Prenuptial Agreement, he may disinherit her from family money), the fact that she was set to become wealthier following their marriage, and, according to her own position, that she wanted to be married for love rather than for her money.

The parties married in 1998, having entered into the Prenuptial Agreement and subsequently separated in 2006, by which time they were the parents of two children.

During their marriage, at his peak, the Husband was earning as much as £330,000 per annum but had subsequently given this up, returning to study. Needless to say, he sought, on divorce proceedings, to extricate himself from the Agreement, saying that the document had been prepared in German, without a translation; that he had not had independent legal advice; that there had been no disclosure of Ms Radmacher’s financial circumstances and, perhaps most importantly, that the document provided for no provision even in the case of severe financial hardship.

At the initial hearing, the Husband was awarded £5.56m to provide him with a home, capitalised maintenance for the remainder of his life and other smaller sums to meet his overall requirements. The reasoning given for this decision was that because the German Agreement was in existence, the Court had to look at the lower end of what they might otherwise order, in divorce proceedings exhibiting similar circumstances.

Ms Radmacher appealed this decision and the Court of Appeal agreed. They highlighted the problems of different approaches within Europe and, in particular, the fact that had the parties divorced in Germany or France, it is fair to say that Mr Granatino would have received nothing because of the existence of the standard property regimes which exist there. In England and Wales, however, where matters are dealt with under the common law system, the courts of course still have a very wide discretion.

It is pertinent to note that only a short while ago, namely 1995, the Court’s view was that contracts such as Prenuptial Agreements would be of limited significance.  By 2008, the Courts were saying that in cases of short marriage and with no children, a Prenuptial Agreement was of significant importance.  We are now in 2010 and the Supreme Court’s decision today seemingly says that the existence of a Prenuptial Agreement is able to override most other factors.

The earlier Court of Appeal decision took the view that whilst it was correct to discount the entitlement awarded to the Husband to the lower end of what would otherwise be the likely Order, this discount should be attributed solely to the period during which the children continued to be dependent. Essentially, therefore, rather than providing a home for Mr Granatino, together with maintenance for the reminder of his life, they provided that he should receive a property in which he could reside during the children’s minority but which would, at the end of that minority, pass back to Ms Radmacher. In addition, the capitalised maintenance element was still awarded but limited to a period during which the children would remain dependent.

Historically, the courts have been reluctant to change the law in this area, feeling that it was a matter for legislation (currently under review by the Law Commission). However, the courts have for some time now been mentioning changing morals and the requirement of the law to keep up-to-date with modern life. Gradually, they have taken a less “paternalistic” approach and obviously there is also the need to bring England and Wales into line with the rest of the world, particularly Europe. In this case, the Court has taken the matter way beyond any previous attempts to achieve this. In this particular instance, there were many factors which could have been used by the Court to find in favour of Mr Granatino, not least the fact that he had not received independent legal advice, did not know the extent of the Wife’s assets and does not appear to have even had the document translated before he signed the same. What is even more important is the fact that the Court has essentially held, that the existence of the Prenuptial Agreement, is such that it is no longer fatal to its existence even if there is no provision for a parent with children. This case essentially provides for Mr Granatino to receive what would ordinarily be made available to the parent of an unmarried couple, for example, under a Schedule 1 claim, representing the only option available to unmarried parents seeking provision for the children of that relationship.

The decision will highlight concerns, not least because the instant case is perhaps not the most usual. Mr Granatino was not so weak as to be vulnerable. In most cases, where Prenuptial Agreements are entered into, in fact the weaker party would be a Wife with limited earning capacity and perhaps one or two children, with the vast majority of the wealth, or indeed all of the wealth, being attributed to her Husband. In those circumstances, where a Wife, as the weaker party, enters into such an Agreement, is it realistic or indeed fair for that to be upheld by the Court? Her circumstances are of course considerably at variance with those of Mr Granatino, who essentially was at one stage an extremely successful individual in his own right.

It will, in those circumstances, be interesting to read the full Judgment and analyse the Court’s reasoning behind the decision in this matter.

If you miss the deadline it could be costly, as paper returns filed after this date could mean a £100 penalty.

An alternative to paper-filing is to file your return online, which benefits from a January deadline.

If you would like assistance in preparing and filing your tax returns, please contact James Odds on 01923 202020 or james.odds@mablaw.com.

 This is a device of long lineage, first noted judicially in 1769 (the same year the last wild wolf was killed in the British Isles) in Dufour v Pereira a case tried by Lord Camden (yes, the man who founded Camden Town), who amongst the “haths” in his  judgment, had this to say

“It is a contract between the parties, which cannot be rescinded, but by the consent of both. The first that dies, carries his part of the contract into execution. Will the Court afterwards permit the other to break the contract? Certainly not.”

Sounds a bit scary, a bit like a suicide pact, but in reality it’s not, it is just an arrangement where two people irrevocably agree to leave their estates reciprocally . But aren’t all wills recovocable until death, I hear you say? Absolutely, and theoretically this is no exception to the rule, being in fact the application of a prior constructive trust.

Say A and B agree to make wills leaving all to each other, subject to a proviso that if the other dies first the estate passes to X. A dies and the estate passes to B, who contrary to the earlier  agreement with A, then makes another will leaving all to Z.  On B’s death X can apply to have the gift to Z set aside, citing the agreement for mutual wills as the document that sets out the terms of the prior trust. Don’t most husband’s and wives write wills in that form? Well yes, all apart from the agreement that the wills are to be in irrevocable mutual form.

The recent case that underlined the continuing effectiveness of mutual wills involved the estates of two sisters Ethel Willson and Mabel Cook.  Mrs Cook died in 1995 having made a mutual will by agreement with her sister Ethel, who died in 2006,  having made a new will 2 months before she with provision materially different from the earlier mutual will; Ethel cut out the earlier bequests to relatives and friends  in favour of the sisters’ hairdresser, who duly received the £390,000 estate. The disappointed relatives and friends took their greivance to Court, and in a case involving allegations of undue influence and mental incapacity, the Court concluded that the sisters had made mutual wills the terms of which should be upheld, such that Mrs Fraser was required to hand back the cash.

For understandable reasons such cases rarely come to Court.  In the opinion of the solicitor acting on behalf of the disappointed family and relatives such a proposition has been upheld only 3 times in the last 80 years. Such wills are rare, falling outside many a seasoned draftsman’s experience. It’s also quite likely that should the survivor of such an arrangement subsequently make a different will the fact that the provisions cut across an earlier mutual will may not be brought to anyone’s attention. Errors of drafting or administration in this particular field can still have spectacular consequences, as this case amply illustrates. Get thee to a lawyer if you are at all concerned!

Just when all family solicitors thought nothing could be further from the truth, along comes a decision from the Court of Appeal to make it even less likely and the law even more difficult to predict.   

In the case of Jones v Kernott, the Court looked at this issue yet again. In this particular case, Ms Jones and Mr Kernott had met and gone on to purchase a house together in their joint names. As with most other couples venturing into the world of home ownership, they saw no reason to discuss what would happen in the event of their separation, preferring not to consider this as an option. That being said, to be fair to them at the time, they would probably have agreed that the net sale proceeds should be divided equally. As with so many of these cases, it was not until some time later that one of them decided this was no longer fair or reasonable.  

They separated. Mr Kernott moved out and bought another property. When they separated, it still seemed reasonable to both of them that they should share equally in the net sale proceeds. However, Mr Kernott stopped contributing towards the mortgage, presumably concentrating on paying for his new property – again a perfectly obvious thing to do. Meanwhile, Ms Jones continued to make the payments on the mortgage and the endowment, and paid all other bills without any assistance form Mr Kernott. It seems that this was when her view changed and she felt that she should be entitled to more. However, she did nothing about it until Mr Kernott, some 12 years later, decided to try and recover his half share. Ms Jones issued proceedings, seeking a declaration that she was the sole beneficial owner of the property and entitled to the full net sale proceeds.  

The first and second courts agreed with her, albeit not entirely. Nevertheless they awarded her a 90 per cent interest in the property. The Judges based their decision on the fact that clearly their intentions – that all important word in considering division of property between unmarried couples – had changed and that the court could infer this from the very fact that Ms Jones had taken on responsibility for the mortgage without financial assistance from Mr Kernott. Having decided that there was a change in the parties’ intentions, they then went on to decide the appropriate shares bearing in mind what was “fair and just.”    

However the Court of Appeal overturned the decision and ordered that the parties should be entitled to the property equally. The Court of Appeal was of the view that the court in such applications was not there to re-write the law and could not therefore infer an intention. Had there been a change of intention? Nothing had been discussed. Whilst Ms Jones may have changed her intention, there was nothing to suggest she had ever communicated this to, or agreed it with, Mr Kernott. He was carrying on, blindly assuming that he was still an equal owner as he had been in the past. Indeed it might be said that had he known his lack of attention to dealing with this was eating into his share of the property, he would have acted earlier to realise it – maybe that would not have been in the best interests of Ms Jones, who was of course continuing to occupy the property with the children of their relationship.

The upshot was, however, that the Court of Appeal held that there had been no change in the common intention and that, as a result, they must still own the property in equal shares. In light of the fact that Ms Jones had brought up the children without any financial assistance, not only towards the mortgage and endowment but also in the form of child support, will make this decision seem to most of us grossly unfair, but it just highlights that the courts cannot simply do what may be considered morally right, but must follow the law.

This remains a very difficult area of law to predict and this in itself makes it expensive litigation. If you have any questions concerning this area of law, please do not hesitate to email me at amanda.melton@mablaw.com.

The above has been the case for some time, but the recent case of W-v-W  has sent out a warning that this situation may not continue for much longer. Mrs W had ongoing maintenance. Her former husband had become somewhat wealthier during the five years since their separation and she made an application to vary and capitalise. The court did increase the level of Mrs W’s maintenance and then applied the usual formula to capitalise the same, but, before doing so, made a substantial discount (approximately one-third) to reflect the fact that by the time of the hearing she was in a settled relationship, which had already been ongoing for some five years. Mr W quite reasonably, but unsuccessfully, argued that:

(a) there must come a time when his former wife made a choice, whatever the consequences for her financially;

(b) his former wife’s maintenance should at the very least be subject to a cut-off date in light of her cohabitation, rather than the calculation being done on the basis of a joint lives order.          

This appears to be at least a step towards minimising the continuing claims of former wives who choose to cohabit rather than remarry. So, which is the right option? Obviously much will depend upon individual circumstances. However, certainly it is worth bearing in mind that once married for the second time, there are of course claims against that second husband in the event that relationship breaks down. In light of the courts seemingly changing attitude towards former wives who cohabit, maybe this should be borne in mind when contemplating cohabitation v second marriage.

In this case, K appealed against earlier decisions regarding a declaration as to the share of the beneficial interest in a property he co-owned with J. J and K had bought the property in 1985 with a deposit provided by J and a mortgage, the repayments of which were shared. The property was in joint names. In 1993, K moved out and J remained in the house with their two children and made all the mortgage repayments during that time. K subsequently purchased another property. Approximately 12 years after their separation K sought the payment of his half share. J issued proceedings under the Trusts of Land and Appointment of Trustees Act 1996 and sought a declaration that she owned the entire beneficial interest in the property. A declaration was made that the beneficial interest was split 90 per cent to 10 per cent in favour of J and that decision was upheld on appeal.

The Court of Appeal held:

1. The conveyance into joint names created joint beneficial interests. The parties agreed that when they separated they had equal interests. There had to be something to displace those interests and the passage of time was insufficient to do so, even though K had acquired alternative accommodation and J had paid all the outgoings since K had left. K was entitled to a 50 per cent interest in the property and the decision that the interest was split 90 per cent to 10 per cent in favour of J was wrong.
2. There was nothing to displace the presumption of equality. There was a total lack of evidence about the parties’ intentions. If K and J had truly intended that K’s beneficial interest should reduce post-separation, they should have acted accordingly and adjusted their beneficial interests.
3. The burden of proof was on the party seeking to show a common intention that the beneficial interests should be different to the legal interests.

This case followed the landmark decision in  Stack v Dowden (2007) UK HL 17 in which an unmarried couple lived for many years in property purchased jointly. No express declaration was made as to how the beneficial interests in the property were held. The House of Lords held that they were entitled to joint and equal shares in the property unless a clear contrary intention was shown otherwise.  The case established the following principles for determining the beneficial interests:

•  a conveyance into joint names will result in a legal and beneficial joint tenancy, unless the contrary is shown;
• the burden of proof is on the owner seeking to show that they intended to hold their beneficial interests as tenants in common;
• the court must ascertain the parties’ shared intentions in the context of the whole course of their conduct relating to the property. Some of the factors to be considered include:

• any advice or discussions at the time of the transfer, that would indicate their intentions at that time; 
• the reasons why they purchased the house jointly; 
• the purpose for which the house was acquired; 
• the nature of the parties’ relationship; 
• whether the couple 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, for example, whether their accounts were held separately, together or a combination of both; and 
• how the couple discharged their outgoings on the house and other household expenses.

These cases show that it is imperative to consider how the beneficial interests should be held when purchasing property jointly, especially where the buyers are unmarried. The burden on the party seeking to rebut the presumption of joint beneficial interests is a heavy one and the court will not substitute what it considers to be a “fair” solution in the absence of any evidence as to the parties common intention. Any decision by the parties should be documented by way of a declaration of trust to avoid any uncertainty.

Shortly, these are the facts. Miss Jones, “a peripatetic hairdresser”,  was 26 when she met Mr Kernott in 1980 and 3 years later they were sharing her caravan,  a year before their first child was born in 1984. In 1985 Miss Jones sold her caravan and she and Mr Kernott jointly purchased a house for £30,000.  The purchase was funded by £6,000 of Miss Jones caravan sale proceeds and an interest only  mortgage in their joint names, backed by an endowment policy, also in their joint names. Mr Kernott was to do some repairs and refurbishment at the property, principally an extension, the size and effect of which was apparently to increase the value of the property by 50% on its purchase price.  In law,  although they clearly made different initial  financial contributions, they bought it as joint tenants, without specifying their respective interests, an ommission still depressingly common today. No declaration of trust was drawn up or any form of cohabitation agreement. The judgment makes no mention of whether the parties made wills or if they did what they provided, so it is probably fair to assume that they were “paperwork lite” in their arrangements, as is so often the case.

Miss Jones and Mr Kernott had a second child in 1986. Miss Jones continued as a home hairdresser and Mr Kernott was variously an ice cream salesman or a builder or on benefits. Mr Kernott gave Miss Jones £100 a week as housekeeping and that, with her earnings, met all the household outgoings, including the mortgage and endowment payments. Mr Kernott appears to have bought the extension materials and built it.

In 1993, 13 years after their relationship started and 8 years after their house purchase, Miss Jones and Mr Kernott parted. She stayed in the house with the children. The Court of Appeal don’t tell us where Mr Kernott then went, but by 1996 he was buying a property for himself.  From the time they separated, Mr Kernott paid nothing towards the house and gave nothing to Miss Jones for the children, although he saw them from time to time. Miss Jones redecorated several times over the following years, replaced the flat roof on Mr Kernott’s extension and added a gate and fences to the property.

In 1995, the property owned by Miss Jones and Mr Kernott was put on the market, but didn’t sell. In 1996 the joint names endowment policy was surrendered and divided equally, Mr Kernott using his share as the deposit on his new house. In 2006, once the property was no longer their children’s home, Mr Kernott asked Miss Jones for his share of the value of it. In 2007, Miss Jones launched an application under the Trusts of Land and Appointment of Trustees Act 1996 (often referred to as TLATA), seeking a declaration that she owned the entirety of the property, or that if she didn’t then she had an interest both in this property and the one that Mr Kernott had subsequently bought in his sole name using part of the joint endowment policy proceeds; Miss Jones later abandoned this alternative claim before the trial judge in Southend. In March 2008, Mr Kernott served a notice of severance of joint tenancy, ostensibly converting the joint ownership to a tenancy in common in equal shares. At the conclusion of that trial in April 2008, based on his analysis of their respective financial contributions to the property over the years, HHJ Dedman concluded that Miss Jones was entitled to 90% of the value in the property and Mr Kernott the remaining 10%, a conclusion he felt able to draw from the authorities of the House of Lords in Stack v Dowden (2007) and the Court of Appeal in Oxley v Hiscock (2004) and Goodman v Gallant (1986), the major decisions on beneficial interests in property. At that time the equity in the property was assessed to be £218,300; by comparison, Mr Kernott’s equity in the house he owned in his sole name stood at around £268,000.

Unfortunately for Miss Jones, two out of the three judges hearing Mr Kernott’s appeal in the Court of Appeal, saw it differently. On their analysis, a property bought in joint names, with no express indications to the contrary, is owned equally. On their view there had been no change to that ownership over the years, notwithstanding arguments that one had contributed more financially than the other, one had done more work on it than the other, or one had (and the other hadn’t) occupied it solely for some years.

In the leading judgment of Wall LJ, following Stack v Dowden “the conveyance into joint names…created joint beneficial interests and the parties agreed that when they separated they had equal interests. There has to be something to displace those interests, and I have come to the conclusion that the passage of time is insufficient to do so, even if, in the meantime, [Mr Kernott] has acquired alternative accommodation, and [Miss Jones] has paid all the outgoings.”  Consequently, Miss Jones owes Mr Kernott around £109,000.

Unless and until the Supreme Court see it differently, this remains the approach the Courts are required to apply in such cases. It can be avoided by evidence of an agreement to the contrary, either express or to be inferred. Rather than leave it to a judge to decide, best advice must be put such agreements in place, in writing, and compare periodically the arrangements the documents envisage with what is happening in fact.

“Respect” to LSE’s marketing because somehow, despite the dull label, this caught the attention of the Press and we had the Dail Mirror tell us “Home help husbands stop splits” (14 May 2010), The Independent “Divorce less likely if fathers help out” (Ellen Branagh, 14 May 2010), The Daily Telegraph “Divorce twice as likely when husbands neglect housework” (Martin Beckford, 14 May 2010) and Timesonline “Husbands who help in house less likely to divorce” (13 May 2010). Significant and serious stuff then.

Seeking further detail, partly in the hope of  having some of my better personal traits highlighted and partly of adding to my already significant  battery of gratuitous after-the-event advice for clients, I found and read a copy of the 23 page report. Leaving aside some dodgy spelling this side of the Atlantic (“labor” in various manifestations) and quite a lot of jargon (try on ”cross-sectional and time-series studies” for size), my first discovery was that the data  related to heterosexual married families with small children (“The British Cohort Study”); no lessons there for the childless then.  Secondly, the couples concerned had their first child (there were 16,000 such children  just in case that thought crossed your mind) during one week in 1970, 40 years ago (the same year Mick Jagger, as he then was, was fined for cannabis possession and teenagers could vote for the first time) ; count out the under 60s then. Thirdly,  the data relied on was gathered from the mid-1970s to early 1980s in 3 tranches 1975 (Microsoft was founded as was Jamie Oliver), 1980 (British Leyland launched the Metro and Mr and Mrs Button launched Jenson) and 1986 (witnessed the Chernobyl disaster and the birth of Lady Gaga); anybody included in the study was divorced over 25 years ago! Allowing for losses of various sorts along the way and excluding (or including) certain couples for reasons  explained in the paper such as those couples not married at the birth of their first child, but which I confess I mostly didn’t comprehend, the sample number of families used in reaching the study’s final conclusion was cropped to 3,540; not, you might think, a large number from which to draw many or significant patterns.

What contribution did those qualifying husbands make? Turns out that was defined as the mother in the couple admitting that the father had carried out one or more of four mostly child-related tasks (I didn’t say chores) in the week before the survey! The four tasks were helping with the housework (putting out the dustbin?) or shopping (buying the beer?), helping looking after the children when the mother was doing something else (“Have you finished your bath yet, this one’s crying?”), helping with babysitting in the evening (“Sit down and watch this programme”) and helping put the children to bed (“Go to bed!”). Significant input then.

For those of you still reading this, and if I was handy at statistical analysis I could probably drum up a prediction of a very small number, things get a little more exclusive yet. Turns out the remaining couples were subdivided into different categories, the “control” (that sample against which all the other categories are measured) being the couple with a mother who hasn’t worked since the first child was born, who was aged 21 when she married (!), had a daughter for the first birth and subsequently gave birth to a boy ( 48% of the cases).  The next category was couples where the mother worked full-time (4.5% of the cases), the third category a full-time working mother where the father was credited with doing three or four of the task types (25% 0f the cases) , and the last being a couple where the mother works full-time, the father does the four task types and he looks after the children whilst the mother works (14.5% of the cases). The control group had a predicted probability of divorce of 0.033, the group where the mother works full-time (and the father’s employed) 0.065, the group where both parents work full-time and the father does all four tasks 0.045, and the group where the mother works full-time and the father’s unemployed looking after the kids 0.032. That’s it then, that’s where the recommendation that housework saves marriages comes from!

Call me cynical perhaps, but that’s some fairly over-extracted  statistical interpretation, and only one of several possible conclusions, all of historical interest. You might just as well say that if you didn’t want to get divorced in 1975 and you want to have children, don’t let their mother return to work! I  was more taken with the extrapolation that in 1975 a significant 51.39% of those wives questioned reported that their husbands did none or no more than one of the four tasks identified in the week before they were asked!

The short answer, given by Arnold J in his judgment in Williams v Hull [2009] EWHC 2844 (Ch) is  “without prejudice to my position in any subsequent proceedings”.

The judge reached this conclusion in an application centered around the interpretation of a single letter sent by Mr Hull, a financial consultant, to his former cohabitant, Ms Williams, a solicitor, concerning the value and allocation of their jointly owned home and its contents, following the breakdown of their relationship.

Mr Hull had said that he thought he owned half of the property. Ms Williams contended he owned 7%, based on a draft Deed of  Co-ownership prepared, but never signed, when the property was purchased.

In his letter dated 19 October 2009 and headed “Without Prejudice” Mr Hull advanced arguments based on an assumption that he owned 12% of the property, not half. Not unnaturally, Ms Williams sought to tie Mr Hull to that concession. If the letter was validly headed “Without Prejudice” she could not, but if it wasn’t then she could.

Arnold J reviewed the established authorities and concluded that the “without prejudice” rule is founded on the public policy of encouraging litigants to settle their differences. It is intended to enable parties in dispute to lay their cards on the table  and negotiate without fear that by so doing they will have compromised their legal position, if subsequently their issues are taken to a litigated conclusion.  Whether or not a particular document bears that heading or whether proceedings have been issued is not an essential requirement; it’s all a question of context and interpretation.

On his interpretaion of three letters passing betwen these parties, the second and third of which were headed “Without prejudice”, the label was properly applied, and was not a “cloak for perjury” or a mere assetion of rights as Ms Williams had contended; consequently, the content of the “Without prejudice” correspondence should not be referred to at trial. In reaching this conclusion he reversed the decision of HHJ Marshall QC, who first considered the point.

Whilst the decision has provided clarity for these parties, issues of context and interpretation continue to mean that for the label to be effective, thought has to be given to its use.  The case also underlines that in such circumstances it remains better to be safe than sorry – if you are buying property jointly, don’t just have a deed drafted, have it signed and dated too!