Strong evidence needed for post-separation alteration to Stack presumption ofequality

Following Stack v Dowden there is a presumption of equality of shares in joint name cases  (in the absence of clear agreement to the contrary or unusual factors pointing to some other intention). Having found that the intention of equal shares applied at some stage, the Court will need clear evidence of a subsequent alteration to the parties’ intentions.

In Kernott v Jones ([2009] EWCA Civ. 578, CA (Eng)) K and J cohabited and had two children together. K abandoned J in 1993. J then met all mortgage and other payments concerning the family home and got very little financial help from K. In 2007 J sought a declaration that she was the sole beneficial owner of the family home. She accepted that in 1993 at the time of the separation, K was entitled to a one half beneficial interest in the property. She contended that the events of the next 14 years (the fact that she made all payments) showed that in the light of the whole course of conduct, the parties’ intentions had changed on an ambulatory basis. The majority of the Court of Appeal rejected this and found that the facts of the case showed no intention to alter the 1993 intention of equal beneficial entitlement.

The judgments (especially those of the majority) are an interesting critique and analysis of the judgment of Baroness Hale in Stack v Dowden and a confirmation that there is no conflict between this approach and that of the Court of Appeal in Oxley v Hiscock.

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