Whose fairness is best?

We’ve been thinking about how the recent Supreme Court decision in Kernott v Jones on the law that applies to people living together might affect the way we might work in practice as family lawyers (for more details on that decision see our previous post). The key concept of the decision in this case was that where the unmarried/not civilly partnered cohabiting couple whose relationship has broken down, have agreed that their interests in a property should change because of things that happen either at the time of purchase or afterwards, but don’t work out the shares to which they are entitled after the change, the court can step in and consider all of the circumstances to decide what shares are fair.

We’re all quite used to the concept of fairness in family law because we’ve known for a few years that a division of matrimonial/civil partnership assets on divorce/dissolution must be fair. However, this is the first time that the concept of fairness has been allowed to play a full part in the resolution of disputes between cohabitants, where there is no specific, tailored framework of law regulating how differences are settled. Even after this judgment it is still necessary to use strict property law concepts for cohabitation disputes, but we can celebrate the fact that the court has recognised that the particular characteristics of an intimate personal relationship mean that there is a greater role for it to play in assessing what should be the end result, as distinct from its role in determining the outcome of a disputed commercial property transaction, for example.

On the other hand, it’s important also to recognise that the court’s concept of fairness doesn’t always chime with the ordinary man or woman on the street. This doesn’t necessarily mean it’s wrong, of course, but such a subjective concept is always going to invite debate.

So we wonder if now there will be more interest in using mediation for disagreements between former cohabitants. Previously, people involved in these disputes may have been reluctant to try to mediate a settlement between them because they might have known that the court had very little discretion in its judgment: the outcome would simply be a question of what the evidence pointed to, rather than a subjective evaluation of the surrounding circumstances. Now we have an element of fairness to work with, we hope that it will encourage people to work towards their own concept of fairness, where appropriate, rather than letting the courts impose one. Mediation can help by providing a neutral arena with an expert, impartial third party who can assist with discussions and facilitate the people involved finding a solution that works for them. So it can be your fair solution, and not the court’s. Fairness, as always, is in the eye of the beholder.

We do of course accept that the circumstances in which the court can justify imposing the “fair” solution the Supreme Court discussed are limited for cohabiting couples, and that the decision could do nothing to affect the wider matters of cohabitation policy that the government has recently said it will not have time to look at in this parliament. Still, the Supreme Court has provided a chink of light, and it’s one we should focus on. We do believe that the concept of fairness may well improve outcomes for those economically disadvantaged when a cohabiting relationship ends; greater prominence for mediation as a process for resolving these disputes could enhance those outcomes, at a lower financial and emotional cost than the court process. Whose concept of fairness would you want to apply to you?