Separating Unmarried Couples: A Guide to TOLATA Claims

It can be very difficult to come to terms with the breakdown of a relationship, particularly when you are unmarried and your financial future, following the breakdown of the relationship, is uncertain. It can also be a shock for separating unmarried couples to discover that they are not protected by the same laws that apply to married couples. Set out below is a brief guide to the law which can assist unmarried couples in respect of property disputes upon the breakdown of their relationships:

“TOLATA” – Trusts of Land and Appointment of Trustees Act 1996

The TOLATA legislation gives the Court the ability to assist in resolving unmarried couples’ property disputes. Under this law, the Court can assist unmarried couples by making orders such as:

• An order which determines what share of a property each party owns.
• An order forcing the sale of land or property.
• An order enabling one party to regain access to a property when the other party refuses to leave.
• An order enabling third parties, such as parents or grandparents, to recover their financial interest in a property owned by the separating couple.

This law can be extremely useful for unmarried couples who cannot rely on matrimonial law to deal with their property disputes as, for example, it can secure the sale of a property where one party refuses to agree. However, it does have some limitations. The Court does not have the ability to award shares of a property in the same way as it can for divorcing couples. The law is much stricter for unmarried couples and restricts the Court to considering what was expressly agreed or what the parties’ intentions were.

Property ownership

The starting point in these matters is for the Court is to look at how a property is legally owned and the following will apply:

a. Property is owned in joint names and there is an expressed agreement as to shares owned.

In circumstances where there is a property owned in joint names and the shares of ownership have been expressly agreed between the parties, the Court will generally conclude that the property is owned by the parties in the expressed shares and it would be very difficult for a party to argue otherwise, although there are some limited grounds which one may try to argue.

b. Property is owned in joint names but there is no expressed agreement as to the shares owned.

The starting point for the Court in this scenario is that properties owned in joint names means that the parties are entitled to an equal share. To argue that one should receive a greater share in these circumstances, the party would need to prove that they had a different intention at the time of purchase or following the purchase of the property, the parties’ intentions changed so that they owned the property differently to how it was registered at the time of purchase.

c. Property is owned in one party’s name only.

Where one party owns the property in their sole name, the starting point for the Court will be to determine that the person who owns the property, owns 100% of it. However, the Court will look at whether the parties agreed that, despite how the property was owned, the person not registered as owner would be entitled to a share in the property and the Court can determine that the non-owning party should receive an interest in the property.

Children and property

Unmarried couples who have children may also wish to consider making an application to the Court under Schedule 1 of the Children Act 1989 as the Court can make provision for children whilst they remain under the age of 18 which could include provisions for the transfer of property, payment of lump sums or allow one parent to remain in a property owned by the other during a child’s minority.

Contact our family law experts today

If you are unmarried and going through a separation at this time and would like to understand more about your legal options, please do feel free to telephone Laura Hunt on 01494 790 060 who will guide you through your options.