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Kernott v Jones Supreme Court hearing to begin on 4th May

How should practitioners advise in the light of the uncertainties in the law?

The hearing of the appeal to the Supreme Court in Kernott v Jones [2010] EWCA Civ 578 will begin on 4th May 2011. 

As Rebecca Bailey-Harris and John Wilson, both of 1 Hare Court, state in an article published on Family Law Week (Hang on a Minute! (Or is Kernott the new White?)), the fault-lines in the ruling in Stack v Dowden [2007] UKHL 17, have become increasingly apparent. However, in the light of the time-frame in which judgment has been given in recent cases before the Supreme Court they ask what advice should practitioners give in the interim.

The authors say:

"The appeal in Kernott v Jones pending in the Supreme Court presents a very similar dilemma for practitioners attempting to advise cohabitees on the current state of the law affecting their homes.   It is probably unwise and may possibly, in certain circumstances, be negligent for lawyers to advise that a case should proceed to a final hearing when the law is "up for grabs" in this area." 

They also consider that the appeal may pose a dilemma for the Supreme Court itself. Should it, as the highest tribunal, take upon itself the task from which successive governments and the legislature have shied away, namely to take steps to cure the inherent injustices in the system, taking into account changing social conditions?  They ask whether it would it be constitutionally appropriate for the judiciary to undertake such a task, particularly where general public opinion does not appear to favour reform?

The article can be read here.