Quantifying shares after a change of intention: the 'fair share' rule (Jones v Kernott)
Sunita and Gareth bought a house in Swindon, England, in joint names in 2006 as their family home, with no declaration of trust. They separated in 2011, when Gareth moved out. From then on Sunita alone paid the mortgage, insurance and repairs, and brought up their children in the house. Gareth stopped contributing and used his savings to buy a flat of his own. The court finds that, after the separation, the couple came to intend that their shares in the house would no longer be equal. However, there is no evidence, direct or by inference, of what proportions they intended.
How should the court decide the parties' beneficial shares?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: The share the court considers fair, having regard to their whole course of dealing in relation to the property.
THE RULE TO REMEMBER
Where a changed intention to hold unequally is shown but its proportions cannot be found, each party takes the share the court thinks fair, having regard to the whole course of dealing.
Quantifying shares after a change of intention: the 'fair share' rule (Jones v Kernott)
In Jones v Kernott the Supreme Court held that the presumption of beneficial joint tenancy can be displaced by showing that the parties later formed a common intention that their shares would change. Where it is clear that they changed their original intention, but it is not possible to ascertain by direct evidence or inference what shares they intended, each is entitled to the share the court considers fair having regard to the whole course of dealing between them in relation to the property. That phrase is given a broad meaning. Financial contributions are relevant, but so are many other factors. That is the situation here. The finding that the couple came to intend unequal shares displaces equality, but no actual proportions can be found. The court must therefore quantify the shares by reference to what is fair over their whole course of dealing. That includes Sunita's sole payment of the outgoings since 2011 and Gareth's investment in his own home. The result is likely to favour Sunita substantially.
Why A is wrong: The presumption of equality can be displaced by a common intention, original or later, without an express declaration.
Why B is wrong: Jones v Kernott rejected resulting trust arithmetic for the family home; contributions are only one factor.
Why C is wrong: At the quantification stage the court may impute a fair share where actual intention cannot be found.
Why D is wrong: The parties may later form a common intention that their shares will change, as they did here.
A little more practice done.
Related questions
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