It is often the case that couples purchase a property together and cohabit without getting married. However, if they separate and there is disagreement over the shares of the property, the rules for deciding on who gets what share of the property is not so straight forward.
Married couples have the benefit of the Matrimonial Causes Act 1973. This allows a Court to consider how to separate assets; however, there is no such term as a common-law wife or common-law husband for co-habiting couples. Therefore, the Matrimonial Causes Act cannot regulate the rights of unmarried couples.
Co-habiting couples will need to use the Trust of Land and Appointment of Trustees Act 1996 (also known as TOLATA). This allows the Courts to:
- Determine the share of the property that each party holds,
- Force the sale of the property or land,
- Allow a person to re-occupy a family home when an ex-partner refuses to leave; or
- Assist grandparents or parents wanting to recover a financial interest that they have provided for the benefit of the property.
What will a court consider when unmarried couples separate?
The Court must consider the intentions of the parties when they entered into the purchase of the property, the reasons behind that purchase and the welfare of any child under the age of 18 who has the benefit of use of the property. The Court also must consider the interests of any mortgage attached to the property.
The Court must be aware of the background of the purchase and how the payments towards the property have been made since that time. Evidence such as the name of the person who purchased the property, any Declarations of Trust entered into or how each party has acted will all be considered. However, this is not an exhaustive list and all circumstances can be taken into account.
How does a claim under the Trust of Land and Appointment of Trustees Act 1996 work?
The process of a TOLATA claim will start with sending a Letter Before Action detailing the position. The proposed Defendant should acknowledge the letter of claim within 21 days giving a timescale for response and the parties should consider Mediation or Arbitration to assist with the dispute.
The Claim will need to be accompanied by a witness statement of supporting evidence and the Defendant will need to respond within 14 days of service of the claim. They will then have to gather their evidence and file a response.
Any further evidence that is found will need to have permission from the Court to be relied upon and the Court will timetable a Directions hearing where matters can be considered, and Directions made such as joint valuations of the property or further witness statements.
It is important to recognise that proceedings can be expensive and it is always best to try to resolve matters from the outset either through negotiations or mediation. There are also cost implications for the party that may not be successful.
If there are children involved, then an application under the Children Act 1989 can be issued alongside the TOLATA application for a transfer of property for the benefit of a child.
Robertsons Solicitors are specialists in family law, particularly in matters where children are involved. Our team can be contacted via firstname.lastname@example.org