What happens to jointly owned property of unmarried couples upon separation?

Property ownership disputes between unmarried cohabitees are resolved under TOLATA

What happens to the jointly owned property of unmarried couples upon separation?
What happens to the jointly owned property of unmarried couples upon separation?

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 area is not the Matrimonial Causes Act 1973.

Trust of Land and Appointment of Trustees Act 1996 (TOLATA)

The Trust of Land and Appointment of Trustees Act 1996 (TOLATA) gives courts certain powers to resolve disputes between cohabitees over property. The court has broad powers and can make a declaration as to the parties' property rights according to established principles of trust law

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; or
  • To determine the equitable share each party owns in the property.

Separating couples

A cohabitee with an interest in jointly owned property may apply to the court for an order under TOLATA. In determining an application the court will have to consider, amongst other factors, the intention of the parties; the reasons for the purchase; the welfare of any child under the age of 18 who lives in the property or who might reasonably be expected to live there as his or her home; and the interests of any secured creditor such as a mortgage lender.

Information required

It is important to understand what has transpired between the parties and a lot of information will need to be gathered. Although this is not an exhaustive list, questions will be asked 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?
  • Has either party acted to their detriment in any way?

In the absence of a Declaration of Trust it is important that evidence is gathered to ascertain the intention of the parties as to the share they were to have in the property. An experienced solicitor will be able to navigate you through the various evidential requirements.

What happens when children are involved

It is not uncommon for there to be young children of the relationship. Where this is the case, proceedings may also be issued under Schedule 1 of the Children Act 1989. Schedule 1 proceedings may be utilised by an unmarried parent with a beneficial interest in the property, to obtain a top-up of capital to provide for his/her housing needs. In practice, if this occurs simultaneously with the TOLATA claim, the TOLATA and Schedule 1 proceedings are consolidated.

Professional advice

TOLATA claims are complex and every situation will depend on its own facts, therefore it is important to obtain legal advice at an early stage.

Issuing proceedings is a decision to be taken with care as legal costs can be expensive and will likely be conducted in the civil court, not the family court. A Letter Before Action should be sent detailing the claim before proceedings are issued. It is sensible for parties to engage in (or at least consider) Alternative Dispute Resolution (e.g. mediation) before issuing court proceedings.

This article focuses on TOLATA claims in the context of the commonly encountered cohabitee disputes. However, it is important to note it is not just cohabitees that can become embroiled in disputes over the ownership of property. Any "person" who is a "trustee of land" or "that has an interest in property subject to a trust of land" may be assisted by TOLATA.

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

Jasdeep Rai LLB, 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.