TOLATA Claims
Unmarried couples who live together are often not aware of their rights over property when they separate. When separating couples can’t agree on property rights, either of them can make an application to the court to decide under an area of law called TOLATA.
Our expert TOLATA solicitors advise separating couples across the UK from our offices in Bristol and the surrounding area in Bedminster, Bishopston, Bristol city centre, Kingswood and Thornbury.
We focus on practical advice and non-confrontational dispute resolution, keeping conflict to a minimum.
What is TOLATA?
TOLATA (The Trusts of Land and Appointment of Trustees Act 1996) gives the court the power to make decisions relating to property ownership and any related disputes. The court can decide on property ownership and/or whether a property should be sold after a relationship breaks down.
TOLATA does not just apply to romantic relationships; it is also used to resolve property ownership disputes between family members and third parties.
Blog | What is TOLATA?
Unmarried couples’ rights
It’s a common misconception that unmarried, cohabiting couples have the same rights as married couples when it comes to dividing finances, assets and property following separation. Cohabiting couples have no automatic right to their ex-partner’s assets, no matter how long the relationship lasts.
When unmarried couples separate and they share property or land, the arrangements for ‘splitting’ or establishing ownership can be decided under TOLATA.
When considering property rights following a separation, it is necessary to look at each party’s intentions when purchasing the property. For example, whether there was a document (such as a Declaration of Trust or cohabitation agreement) stating how the property should be owned in the event of a relationship breakdown, e.g. equal shares or unequal shares.
If there was no formal Declaration of Trust or cohabitation agreement, intentions can sometimes be determined by looking at relevant communications between the parties, including letters, emails, text messages, WhatsApp or other messages. If the case goes to court, the court will take evidence from both parties and decide what to do with the property, whether it should be sold and how to divide the proceeds of such sale.
Blog | What are the rights of cohabiting couples?
What can the court order in a TOLATA claim?
When a TOLATA claim goes to court, a judge can declare:
- What share of the property each party is entitled to (in the absence of a formal Declaration of Trust or cohabitation agreement)
- Whether the property should be sold or not
- Whether a third party/parties have an interest in the property, e.g. parents who have contributed financially
Settling a TOLATA claim out of court
It is always a good idea to attempt to settle a property ownership dispute outside of court, where possible. This is particularly important if you and your ex-partner have children together and you want to keep things amicable.
Your solicitor will advise you how to settle the dispute in a conflict-free way as part of your case but the most common ways of settling a TOLATA claim out of court are through mediation (where an impartial mediator helps you and your ex-partner come to an agreement) and negotiation between each party’s solicitors.
How Barcan+Kirby can help
Our specialist team of TOLATA solicitors includes Chris Miller, Gareth Hughes, Charmaine Moger and Ella Bartley. As well as being experienced divorce and family lawyers, they specialise in advising unmarried couples on all aspects of separation, including property ownership and child arrangements.
Our TOLATA solicitors can help with:
- Advising you on property ownership following separation from your ex-partner and settling any dispute out of court
- Advising you on a property ownership dispute with another party (non-romantic)
- Where a trust claim arises following death
- Making a TOLATA claim
- Defending a TOLATA claim
The team is top-ranked in legal guides, Chambers and Partners UK and Legal 500 UK for its expertise in family and matrimonial law. Every member of our TOLATA team is a member of Resolution, meaning that they are committed to non-confrontational separation.
Whether you need advice on property ownership following separation or for help defending a TOLATA claim, our lawyers will help resolve things efficiently and with minimal stress.
TOLATA FAQs
When deciding property ownership in a TOLATA claim, the court will look at each party’s intentions when purchasing the property, or subsequently. Intentions can be determined by looking at whether you agreed anything in writing, whether you contributed to mortgage payments or paid for significant work on the property.
Children will also form part of the decision-making process. It may be that the court decides not to sell the property immediately if it is required as a home for the children.
If you and another party cannot agree on what happens to a property or land, you can apply to the court to decide. The process of deciding on property ownership where there is a dispute is:
- You and your solicitor send the other party a Pre-Action Letter notifying them of the claim. They then have to respond to that letter. It is at this point that your lawyer may recommend mediation to resolve the matter out of court.
- If mediation fails, you can apply to the court to decide. Your solicitor can help you with this.
- Once the other party receives notification of the claim, they have to acknowledge it and declare whether they admit or dispute it.
- If the other party acknowledges the TOLATA claim, their solicitor will work with your solicitor to negotiate an early settlement which can then be approved by the court.
- If the other party disputes the claim, the court will need to decide. This is a last resort and our TOLATA solicitors will do everything they can to help you come to an agreement before it gets to this point. In the unfortunate event that there is court involvement, our expert team will guide you through the process.
When establishing property ownership, a Declaration of Trust or cohabitation agreement can be incredibly useful and make it much more difficult to dispute ownership.
When purchasing a property with another party, whether as a couple or with a family member, it is wise to have a written document outlining what should happen if that relationship or partnership ends.
A Declaration of Trust confirms what proportion of the property each party owns. It documents how the property should be divided, e.g. half and half or otherwise.
A cohabitation agreement is similar to a Declaration of Trust but can be more detailed and tends to be more for those who are in a romantic relationship and living together. In addition to declaring property ownership, a cohabitation agreement can include things like who pays what bills or is responsible for repairs.
Either of these agreements can be drawn up at any point in a relationship or partnership, but it is advisable to do so before the purchase completes and to get it drawn up by a qualified legal professional. For advice on cohabitation agreements or Declarations of Trust, get in touch on 0117 325 2929.
Contact our TOLATA solicitors
Separating from your partner can be emotional and stressful and if you own a property together, it can be difficult to know where to start.
For straightforward advice on separating your assets and finances, and establishing property ownership, contact our specialist TOLATA team on 0117 325 2929 or fill out our online enquiry form. Alternatively, make a start online.