A Guide For Unmarried Couples Who Are Seperating
When a couple separate who are not married, usually there is an argument about finances which is usually about a dispute over property ownership.
The Trust of Land and Appointment of Trustees Act 1996 (TOLATA) gives the Court powers to resolve disputes about the ownership of property. A TOLATA claim can be issued to force a sale of property or land; to reoccupy a former home if an ex-partner refuses to leave; by people wanting to recover their financial interest in a property; to determine the share you each own.
Under TOLATA you can apply to the Court to order a sale of the property or to ask the Court who should live in the property or ask the Court to decide on the nature and extent of the ownership of a property owned by two or more people.
TOLATA does not give the Court any power to vary the co-ownership or adjust the proportions in any way. It gives the Court power to decide how the property is owned.
If the property is held in joint names then the law assumes it is held equally unless there is different agreement in place which will show either a Constructive Trust, a Resulting Trust or an Express Trust.
If the position is in writing that makes it simple for everyone.
If there is no written agreement and one party is claiming to have made a substantial and significant contribution to the improvement, purchase or maintenance of the property then the Court can be asked to decide the shares held by each party.
If you live in a rented property your rights will depend on whether you are named on the Tenancy Agreement. If you are not then you have no legal right to stay in the home.
We are often asked “what counts as a contribution”? When a family has been living together and joint incomes are pulled then the situation of a single set of contributions being gathered at the time a property is purchased may not apply. There may well be a number of contributions saved in the years before purchase and then the division of payments of mortgage interests, capital repayments and utility bills or repair costs between different family members in the years after the property was borne.
The Court of Appeal have made clear in a decision that contributions of all forms must be considered in the round. Where a couple have been cohabiting, one party had made some direct contributions to the purchase price of the other’s flat, and further money had been advanced as a loan. Even though the second set of monies was found to be a loan, the Court of Appeal held they could be considered as contributions giving rise to a beneficial interest given that there had been other direct help with the purchase price.
The Courts have a great deal of leeway when looking at a family’s history to determine that a high number of transfers can generate a beneficial interest.
As Solicitors we have to search for evidence of all and any contributions between parties if they then seek to separate and cannot agree on the division of the sale of a property.
Find out more information
If you have just left a relationship or just about and have a query about your rights to any property please contact Lorraine Walker or Manjit Kaur-Heer on 024 76387821.