TOLATA

A guide to property rights for unmarried couples who are separating

There is no such term as 'common law' wife or 'common law' husband and this area of law is often generally misconstrued.

What happens when a couple who are not married but own a property together decide to separate? Most people are surprised to find out that the legislation that governs this situation is completely unrelated to the Family Law Legislation, Matrimonial Causes Act 1973. Furthermore, people are also surprised to learn that there is no such term as 'common law' wife or 'common law' husband and this area of law is often generally misconstrued.

TOLATA

The Trust of Land and Appointment of Trustees Act 1996 (known as TOLATA) gives Courts certain powers to resolve disputes about the ownership of the property (or land). A TOLATA claim can be issued:

  • To force the sale of land or property;
  • To reoccupy a former family home when an ex-partner refuses to leave;
  • By parents/grandparents wanting to recover their financial interest in the property;
  • To determine the share you each own.

Separating Couples

A claim under TOLATA may be wide in regard to who can make the claim but this article focuses on separating unmarried couples. Anyone in the relationship who has an interest in a property or land may apply to the Court for an Order concerning their interest.

In determining an application the Court will have to consider, amongst other things, the intentions of the parties; the reasons for the purchase; the welfare of any child under the age of 18 who lives in the property or might reasonably be expected to live there as his or her home; and the interests of any secured creditor such as a mortgage lender.

It is important to understand what has gone on to determine an interest and a lot of information will need to be gathered to do this such as:

  • In whose name was the property purchased?
  • Is there a tenancy in common or joint tenancy?
  • Was there any written Declaration of Trust or Declaration of the Beneficial Shares?
  • Has either party acted to their detriment in any way not directly contributing to the purchase?

It should be noted that this list is not exhaustive. Office Copy Entries will need to be obtained from the Land Registry to look at the title property. Documents relating to the points raised above will also need to be produced along with a copy of the conveyancing file from the solicitors at the time that the property was purchased. A valuation of the property will also need to be obtained.

Before a claim is issued, a Letter Before Action will need to be sent detailing the claim. The parties have a duty to negotiate to see if matters can be resolved before any Court proceedings otherwise the parties could be penalised on costs. The party who would be a defendant should acknowledge the letter of claim within 21 days of receipt and give a timescale for his or her response. The parties can be referred to Alternative Dispute Resolution (ADR) to assist with negotiations.

When a claim is issued, a witness statement will support the claim and the defendant will have to respond within 14 days of service of the claim and witness statement. The defendant will have to support his or her evidence by witness statement. This can be filed up to 14 days later if the parties so agree or the Court may grant an extension of time.

Further evidence can be provided by any party with the permission of the Court. The Court will then set the case down for an Initial Directions Hearing where directions should be agreed between the parties and the Court has powers to consider whether Dispute Resolution is appropriate. It also has powers to order joint valuations of the property and to order further Witness Statements if required. The Court can also order disclosure between the parties and can make an Order for one party to pay the other's costs.

Proceedings are expensive and the cost of bringing a case to a Final Hearing may be astronomical. The proceedings will not be commenced in the Family Court and are classed as 'Civil Proceedings' and this has serious cost implications. It is important that legal advice is obtained in connection with this difficult and complex area of law.

If you require help and advice concerning TOLATA, and would like to discuss how Hunt & Coombs Solicitors can help you please contact our Family Law Team on 01733 882800 or email info@hcsolicitors.co.uk.

Author

Giuseppe Pingerna, Solicitor

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.