Unmarried couples who live together (i.e., cohabiting) do not have the same protections as married couples if their relationship breaks down. Disputes often arise about who owns what in the family home, which might be the largest—and most emotionally significant—asset shared by a couple. In this blog post, we explore how The Trusts of Land and Appointment of Trustees Act (TOLATA) 1996 applies to cohabiting couples and what can be done to protect your interests or defend a claim.

What is TOLATA?

TOLATA is legislation that can be used when unmarried cohabitees (or other parties) cannot agree on how their property or land should be owned or dealt with after they separate. Typically, TOLATA claims arise over:

• Disagreements about who owns a share of the family home
• Whether the property should be sold
• Releasing one partner’s financial interest if the other refuses to sell

Under TOLATA, courts have the power to clarify property ownership, decide how and if it should be sold, and confirm who is entitled to live in it.

Unmarried Couples & Property Ownership

Contrary to the myth of a “common law marriage,” no automatic rights exist for cohabiting couples. If you and your partner separate, your legal status is different from a married couple. Courts will primarily rely on trust and land law rather than the principles used to divide assets in divorce.

Hence, if an unmarried couple splits and can’t agree who owns the property, the court will examine:

• Written evidence of ownership or intent (e.g., if you have a deed or other agreement).
• Behaviour and contributions during the relationship, if no written agreement exists.

Even if you paid a large deposit or covered most mortgage payments, you may not necessarily have a greater share unless it’s been agreed and recorded. That’s where TOLATA can come into play—through a court application, a judge can rule on how much of the property each person owns and decide whether it should be sold.

What Can a Court Order Under TOLATA?

When it comes to deciding property ownership, the court can:

• Confirm the shares in which each party owns the property
• Order a sale to free up capital if one party refuses to sell voluntarily
• Decide who can continue living in the property after separation
• Recognise any third-party interests, such as financial contributions made by parents

However, the court does not have the same powers as in divorce cases, meaning it cannot reallocate a property’s proportions simply to achieve a ‘fair share.’ It must work with the evidence of each party’s contribution and intentions.

Key Factors the Court Considers

When looking at a TOLATA claim, the family court primarily reviews:

1. Intentions: Whether you originally agreed that you each owned a certain share, or whether one person intended to share with the other.
2. Purpose of the property: Is it a family home?
3. Children’s welfare: If you have children, the court will always bear their best interests in mind.
4. Third-party interests: If relatives helped fund the deposit or contributed financially.

Defending a TOLATA Claim

You can dispute a TOLATA claim by presenting evidence that counters the other party’s assertions. For instance, you may argue you never intended to share equity or that the property was always yours alone. However, if you and your ex can’t reach an agreement out of court, the matter may end up in a contested trial—with inevitable legal costs and stress.

Protective Measures for Cohabitees

Many cohabiting couples aren’t aware they can formalise their ownership intentions in writing well before any dispute arises:

1. Cohabitation Agreement

A cohabitation agreement goes beyond property issues, covering day-to-day finances, bills, savings, and what should happen if the relationship ends. Although not automatically binding, it holds significant weight if drawn up properly and both parties have taken independent legal advice.

2. Declaration of Trust

This is a more targeted document focusing solely on who holds what share of the property. It makes future disagreements about ownership far less likely. A Declaration of Trust is often drawn up when a home is purchased.

TOLATA Application Process

If negotiations fail, you can apply to the court under TOLATA. Applications typically fall into three categories:

1. Deciding which person has the right to stay in the property.
2. Confirming who owns what share of the property.
3. Ordering the sale of the property.

Evidence, including documents showing financial contributions, text messages or emails about ownership, and witness statements, will be crucial. You may also need to attend court hearings.

Need Guidance?

At HM & Co. Solicitors, we handle cohabitation disputes regularly. Whether you’re looking to set up a cohabitation agreement or you’re facing a property dispute post-separation, our team can guide you through the complexities of TOLATA and ensure your rights are protected.

Contact HM & Co. Solicitors

• Address: 186 Lower Road, Surrey Quays, London SE16 2UN
• Telephone: 02071128180
• Email: info@hmsolicitorsltd.com

If you’re unsure of your next step, we’re here to listen, advise, and find the best route forward for you and your family.