TOLATA: Unmarried Couples and Their Property Rights

Cohabiting couples do not have the same legal protections as married couples if they separate. In these cases, the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996 gives individuals the right to make claims about property ownership and rights.

TOLATA (Trusts of Land and Appointment of Trustees Act 1996) is a piece of legislation that allows individuals to claim an interest in a property, regardless of whose name the property is registered under. It enables the court to determine the extent of each party’s interest in the property and whether someone should continue living there. TOLATA is most commonly used by cohabiting, unmarried couples who are separating and have disputes about property ownership.

Any individual who thinks they have an interest in a property can make a claim under TOLATA. It is most often used by cohabiting couples who have separated but could also be used by friends, family members, or business partners to resolve disputes over property ownership.

The court will consider several factors when considering a TOLATA claim, including:

• Whether there was a shared intention between the parties regarding property ownership
• Whether the claimant made financial contributions to the purchase, mortgage, or upkeep of the property
• Whether the parties made non-financial contributions, such as caring for children or maintaining the property
• Whether there was an agreement or understanding between the parties about ownership shares
• The court will look at the specifics of each case to determine whether the claimant has a beneficial interest and, if so, the extent of that interest.

An example of a TOLATA claim would involve an unmarried couple who have lived together in a house purchased only in one of their names. However, the other person believes they have contributed financially, perhaps by paying an amount towards the mortgage repayments or paying some of the other household expenses. When their relationship ends, this person could make a TOLATA claim by stating that they have a beneficial interest in the property.

These are the steps normally followed in the TOLATA process:

A Pre-Action Letter is sent to the other person setting out the claim. The letter would recommend an early resolution to the dispute before formal proceedings are issued.

Following the Pre-Action Letter, there is the opportunity to discuss a settlement, often through mediation. This option would avoid court action.

If a settlement cannot be reached through mediation, the claimant can then move to issue proceedings in court. Evidence will be presented by both parties involved in the dispute and the court will decide on the matter. The court makes a legally binding decision on how the property should be divided.

A specialist family law solicitor will be able to access your TOLATA claim, draft the Pre-Action Letter and help guide you through the process, including helping you reach a settlement via negotiation or through the court.

It is important to seek legal advice. Your solicitor will be able to assess your position and respond to the Pre-Action Letter. Hawkins Family Law will be able to help you prepare for defending a claim against you.

The cost of a TOLATA claim will vary depending on if the dispute is resolved early or goes to court, how complex the case is and the amount of legal work involved. It is important to get legal advice early to get a better idea of costs based on your circumstances.

You will need to provide clear evidence that proves your legal or beneficial interest in the property. Working with an experienced solicitor can significantly improve your chances of success.

The time it takes will vary and it can take several months to over a year. The process will be quicker if a settlement is reached early through negotiation or mediation, or potentially longer if the case requires going to court.

Evidence for a TOLATA claim typically includes documentation that shows ownership or contributions to the property, such as mortgage statements, financial records, bank statements, proof of contributions toward the property’s maintenance or improvements, and any agreements between the parties.

An Express Declaration of Trust is a legally binding document detailing the ownership of a property. It can be used when two or more people purchase a property together. The drafting and signing of this document can prevent future financial disputes.

A Cohabitation Agreement is another way to help prevent future property disputes. This document will detail the ownership of property and financial arrangements and outline what should happen if an unmarried cohabiting couple separates.

Ready to take the next step? As leading family lawyers in Milton Keynes, our team of family law specialists are here to advise you. In addition to our head office in Milton Keynes, we also have solicitors in Watford, and Central London. Talk to us in confidence and find out where you stand. Get in touch – we’re here to help.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.