Divorce and family law

Introduction to TOLATA:

In the event of a relationship breakdown, couples who live together but are not married do not have the same legal rights as those couples who are married or in a civil partnership.  

Irrespective of the length of the relationship, in the event of a separation, cohabiting couples who are not married have limited legal rights and there is no obligation on one cohabitee to financially support the other. Different provisions can apply should your cohabitee die, and specialist advice should be obtained in that case. There remains no legal basis to the often used “common law spouse”.

If you are unmarried and have lived with your partner in a property which they own in their sole name, then you do not have an automatic right to benefit from that property in the event of your separation.

However, it may be that, as a result of financial contributions which you have made to the property, you have acquired what is known as a “beneficial interest” and therefore have an entitlement to receive a proportion of the proceeds in the event of a sale.  Where promises have been made on which you have relied, and you have suffered a detriment in relation to the promise, that also is something which needs to be considered in relation to a potential claim.

The law surrounding disputes in respect of unmarried couples is complex and it is imperative that you seek early legal advice to understand your entitlement, the options available to you and prevent future problems arising.  

What is a TOLATA claim?

The Trusts of Land and Appointment of Trustees Act 1996 “TOLATA” is the key legislation which deals with disputes about property ownerships. Pursuant to TOLATA the court has the ability to make a number of orders including (but not limited to):

1. An order that a property is sold or postponing a sale in the event of a lack of agreement;
2. An order regulating an individual’s occupation at the property; and
3. An order declaring an individual’s interest in a property.

An application pursuant to TOLATA is commonly made by:

Unmarried couples who live together and have a disagreement about the ownership of a property;

Couples who own a property jointly and are not in agreement as to whether the property should be sold or who should live in the property;

Family members who have made a financial contribution towards the purchase of a property;

Individuals who have purchased property with friends or for a business venture and are in a dispute.

What is the process?

First, consider whether any forms of Non-Court Dispute Resolution (NCDR) are appropriate and feasible.

If not, a court application is likely to be required.

It is important to note that claims brought under TOLATA are governed by the Civil Procedure Rules (CPR) which contains strict procedural rules. It is therefore extremely important to obtain early legal advice to ensure that you comply with the CPR.

What does the court look at?

1. When presented with an application pursuant to TOLATA, the court will have regard to:
2. The intentions of the parties;
3. The purposes for which the property is held;
4. The welfare of any minor who occupies the property or who might reasonably be expected to occupy the property as their home; and
5. The interests of any secured creditor of any beneficiary.

How can we help?

1. Initial case review
2. Early advice and evidence gathering
3. Negotiation
4. Court representation
5. Post-resolution support

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