TOLATA Claims and Severance: Kernott v Jones - Family Law journal

DISTRICT JUDGE PETER GLOVER

The recent decision of the Court of Appeal in Kernott v Jones [2010] EWCA Civ 578 [2010] 2 FLR (forthcoming) seems to have perplexed practitioners and academics alike. It even made the pages of the national press as another supposed example of the apparently unprincipled and unpredictable consequences of litigation under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) following the breakdown of unmarried property-owning cohabitation. Calls were renewed for the government to reconsider the Law Commission's draft bill to regulate such relationship breakdowns as Parliament has seen fit to do in the context of civil partnerships. This article will suggest that in fact the decision was principled and in accordance with long settled law referred to if only in passing in the judgment of Wall LJ but which regrettably formed no part of the ratio.

Kernott is the latest in an ongoing stream of TOLATA cases brought before the senior courts. At present they fall to be considered in the light of the House of Lords judgments in Stack...

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