The Office for National Statistics (ONS) Families and Households 2020 report identified that the total number of opposite-sex cohabiting couples has increased from around 1.5 million in 1996 to around 3.6 million in 2021, an increase of 144%. During the same period, the number of same-sex cohabiting couples has increased from around 16,000 to 166,000, an increase of 938%. This data correlates with the increase in TOLATA proceedings processed via the Court in recent years.
Unlike married couples, cohabiting couples do not have an automatic right to ownership of each other’s property in the event of a relationship breakdown. In this instance, the Court have no power to override the strict legal ownership of property – as you may expect with a divorce or dissolution of a civil partnership.
However, under the Trust of Land and Appointment of Trustees Act 1996 (‘TOLATA’), the Court have the ability to make decisions over property disputes between unmarried couples. When carried out effectively, a TOLATA claim can rule on the beneficial interests in the Property (or Land). Essentially, this creates a trust that holds a percentage price of the Property for each party, which will be released upon its sale.
TOLATA gives the Court the power to make decisions on the following:
- Ownership of the Property
- Interests in the Property (Shares); and
- Who can remain in the Property.
The General Process of a TOLATA Claim
- The first step in a TOLATA claim is to send a Letter Before Claim to the opposing party. This letter sets out your legal position and how you would like the dispute to be resolved. A short period of time is provided to the opposing party to respond.
- If the opposing party cooperates, a response should be received within 21 days, either agreeing or disagreeing with your claim.
- On the assumption that we have received a response, our goal at this stage is to engage in tactful negotiations with the opposing party in an attempt to settle the matter outside of the Court. There are many benefits to settling outside of Court, as it is more cost effective, there are less risks, and ultimately, a resolution can be reached sooner without the added stress of a legal dispute. If a settlement is reached at this stage, the process ends here.
- However, if a response is not received from the opposing party, or settlement has not been reached during negotiations, you may be advised to formally pursue a TOLATA claim by issuing Court Proceedings.
TOLATA cases are very complex in their nature and involve technical legal arguments. When emotions are running high, legal expertise is essential for helping to provide clarity on your legal position.
Here at Edmondson Hall Solicitors, we have an experienced team of Family Lawyers who would be happy to help. If you need assistance with making or defending a TOLATA claim, or wish to discuss how you can protect yourself from a potential TOLATA claim, please contact Elisabeth Sneade, our Head of Family Law, on 01638 560556 or via email – Elisabeth.sneade@edmondsonhall to set up an initial consultation. Elisabeth is supported by our Advanced Paralegal (GCILEx) and Trainee Solicitor, Francesca Cann, who can be contacted via 01638 560556 or via email - francesca.cann@edmondsonhall.com
