Cohabitation – how to protect yourself from a future TOLATA claim if your relationship breaks down

July 6, 2022

If you are planning on living with your partner but will not be married, you are advised to make sure that your interest in any shared property is protected.

Unmarried individuals have far fewer rights than those who are married and there is a risk that, even if you contribute financially towards the purchase and upkeep of a property, you could end up with nothing.  The Trusts of Land and Appointment of Trustees Act (TOLATA) can be used to deal with property disputes between unmarried couples where an agreement has been made that one party is to have an interest in the property, even if their name is not on the title deeds.

Protecting your interest in a shared property when you are not married

If you will both be contributing towards the purchase of a property, then ideally the property will be registered in both of your names.

If you will be putting more money into the purchase than your partner, it is possible to protect this by holding the property as tenants in common. This allows each of you to own a specified share of the property. You could own 50% each or, if you have paid different amounts, then the ownership could reflect this, for example, with one person owning 25% and the other person owning 75%. This is generally dealt with by entering into a deed of trust, setting out the share that each of you owns.

You can leave your share in the property to someone in your Will if you own it in this way. This means it is ideal for those who have children from a previous relationship. It is also a way of protecting money given by a third party, such as the parents of one of the couple, in the event of a separation.

If you hold the property in the other type of joint ownership, ie. as joint tenants, then an express declaration of trust can still be used to state the extent of your interest in the property.

You may also want to consider entering into a cohabitation agreement. This is a legally binding document that can include issues such as how mortgage payments will be dealt with, how other bills will be shared and what will happen to your property if you decide to separate.

If the property is owned by only one person, then it is still possible that the other person could have a beneficial interest in the property if they make contributions to the property on this understanding. It is advisable to keep a record of all finances and contributions made towards the property.

Property disputes involving unmarried couples

If you are involved in a property dispute, then you are advised to seek expert legal advice as soon as possible to ensure that your rights and interests are protected.

The first step in dealing with the issue is to send a letter before claim to the other party setting out details of your claim. They will respond, either accepting the position or disagreeing.

The courts will expect you to make attempts to settle matters without the need for a hearing, and your solicitor will be able to negotiate on your behalf to try and do this.

Where necessary, your lawyer will also be able to guide and represent you through mediation.

If a dispute cannot be settled and the court is asked to intervene, then under TOLATA it has the following powers:

• To decide what share in the property each party is entitled to
• To order the sale of the property
• To make an occupation order giving an individual the right to live in the property
• To make an order allowing a third party to recover their financial interest in a property

Contact our expert family law solicitors in Gloucester

If you are living with someone or planning on moving in together, we will be happy to advise you on the best way of protecting your rights and interests.

Litigation and dispute resolution solicitor, Kafula Chipasha, is an expert in dealing with TOLATA issues, including helping clients avoid legal action wherever possible.

To speak to Kafula, ring her on 01452 509 006, email her at kafula.chipasha@tayntons.co.uk or request a call back.