According to the Office for National Statistics (ONS), unmarried cohabiting couples have for the first time become the most common relationship type in England and Wales, with an increasing number of couples living together who are not in a marriage or a civil partnership.
The data shows that although previously couples in a marriage or civil partnership was the most common partnership status among the population aged over 16, for the first time since 2014, this proportion has decreased to below 50% (49.5%).
Source: ONS.gov.uk, Population estimates by marital status and living arrangements, England and Wales: 2024.
As cohabitation continues to rise, so too does the need for clarity on the framework that governs property disputes and the protection for unmarried partners.
Disputes over jointly owned property have been steadily increasing and one area of the law that frequently arises in these situations is TOLATA claims.
In this blog, our family law and dispute resolution team answer some frequently asked questions about TOLATA claims arising from cohabitation disputes to help explain how the law applies in such situations.
What are TOLATA Claims?
TOLATA (the Trusts of Land and Appointment of Trustees Act 1996) is the legislation that governs how property ownership disputes are resolved, particularly those involving trusts or jointly owned land. If a dispute arises over property ownership, the parties involved must each demonstrate their entitlement to a share of the property. The court will then use TOLATA to determine two key matters, namely:
- who has the right to occupy the property and
- the extent of each party’s ownership interest.
In most cases, the courts do not have a discretion to vary existing co-ownership arrangements or adjust ownership shares once established. Instead, claims are assessed either as a dispute over the facts of the case (a Part 7 claim) or a dispute over the legal principles involved (a Part 8 claim).
When Might TOLATA Claims Arise for Unmarried Couples?
Whilst TOLATA can apply in a range of circumstances, these claims are more common between unmarried cohabiting couples following a separation. They often occur when the parties cannot agree on their respective shares in or rights to a property, whether the property is solely owned by one party or held as joint tenants or tenants in common. Typically, they occur when one party believes they are entitled to a larger proportion of the property’s value, or where the terms of the joint ownership are unclear or disputed. For example, there may be no declaration of trust, setting out ownership shares, or no cohabitation agreement addressing financial responsibilities and contributions. Without these documents in place, disputes are more likely to occur.
What Factors Do Courts Consider?
Contrary to popular belief, under current family law legislation, there is no such thing as “common law marriage” in England and Wales. So, regardless of how long you have lived with your partner, if you are not married or in a civil partnership, you will not have the same automatic legal rights to property if you separate. Nevertheless, your property rights can be established in several other ways, and TOLATA provides the legal framework for courts to assess those rights. Broadly speaking, a cohabitant may have an interest in a property either as a joint owner or, where the property is solely owned by one party, through the existence of a trust.
Before reaching a decision in a TOLATA claim, the court will consider various factors. For example, it will consider the intention of the parties, whether there exists any written agreement or declaration of trust, the financial contributions made by each party and, importantly, the welfare of any children or vulnerable beneficiaries. As with all disputes, the court’s overarching aim is to achieve a fair and proportionate outcome which balances the competing interests of everyone involved.
How Do You Initiate a TOLATA Claim?
To begin a TOLATA claim, you will need to submit a formal application to the court, setting out details of the dispute and providing all relevant supporting evidence. However, before taking your matter to court, it is worth exploring whether the matter can be resolved through Alternative Dispute Resolution (ADR).
ADR, such as mediation or negotiation, is typically faster, more cost-effective, and less combative than litigation. It is particularly beneficial to avoid stressful court proceedings where children are involved, as it helps to cultivate a more amicable, workable relationship between ex-partners who need to co-parent.
How Can You Avoid TOLATA Claims?
Before moving in with or buying a property with your partner, especially if you are not getting married or entering into a civil partnership, it is sensible to ensure that from the outset you both have clear, documented intentions regarding the property’s ownership and your financial arrangements.
If you are buying a property together, it is also vital to understand whether you will own your property as joint tenants (where if one of you dies, the property will pass automatically to the surviving owner), or as tenants in common (where you each own a defined share in the property and your share will pass according to your Will or the intestacy rules if you die without leaving a Will).
One of the most common ways of legally setting out how a property is owned is through a declaration of trust. This document can set out:
- the ownership share of each partner
- the financial contributions made towards the purchase of the property
- how ongoing financial responsibility is to be handled
- what happens if one partner wishes to sell the property
- what each partner is entitled to if the property is sold.
A declaration of trust is particularly important where the parties’ financial contributions are unequal or where friends or family have provided financial support towards the purchase of a property.
If you are living together but are not married or in a civil partnership, you should also consider setting up a cohabitation agreement which is separate from a declaration of trust. Where a declaration of trust focuses on your property ownership, a cohabitation agreement will focus on your broader financial arrangements whilst living together and what will happen if your relationship ends. For example, this can include arrangements regarding:
- your joint finances
- the payment of household bills
- responsibility for reducing or paying off debts
- what will happen to jointly owned assets, savings, and investments if you split up
- what will happen if one of you stops work to care for children
- what will happen to any pets.
Whilst these documents do not replicate the legal protections of a marriage or civil partnership, when properly drafted, they can provide some clarity, a level of legal protection and significantly reduce the risk of a future dispute.
At the very least, keep clear records of all financial contributions you have personally made towards the property during your relationship, including providing or contributing towards the deposit, mortgage repayments, property repairs or renovations. You may need to rely on this paperwork should a property ownership dispute arise in the future.
TOLATA and Property Dispute Specialists in Blackheath
Unmarried couples going through a separation can face many unique pressures and if property is involved, it can be especially challenging.
If you are facing a property dispute or have questions about your rights under TOLATA, it is strongly recommended that you seek specialist legal advice at the earliest opportunity.
At Beverley Morris & Co., our experienced family law and dispute resolution solicitors based in Blackheath, London can provide specialist advice on cohabitation matters and property disputes, protecting your legal rights and interests, and advise on making and defending TOLATA claims.
We can assess your individual circumstances and guide you through the most appropriate and cost-effective course of action.
Our legal team will work with you to resolve matters in the most amicable and constructive way possible, finding solutions centred on the best interests of all parties involved.
For more information, or to speak to one of the team, call 020 8852 4433 or email: enquiries@beverleymorris.co.uk.
Alternatively, click here to arrange a callback.
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