What happens if you are not married but own a property together and decide you need to separate?
It’s a situation that can feel daunting, especially when you are uncertain about the future of your home.
In this article, Specialist Dispute Resolution Solicitor, Anthony Eaton outlines everything you need to know and what your next steps should be…
What is TOLATA?
TOLATA refers to the Trusts of Land and Appointment of Trustees Act 1996.
A TOLATA claim is often a claim by co-habiting unmarried couples to determine ownership rights to property when their relationship comes to end. However, it can also be used by anyone who thinks they have an interest in a property, such as friends or family members.
A TOLATA claim will decide how a couple’s property is dealt with when they separate, allowing them to move forward.
When can a TOLATA claim be issued?
A TOLATA claim can be issued,
- To force the sale of land or property
- To reoccupy a former family home when an ex-partner refuses to leave.
- By parents/grandparents wanting to recover their financial interest in the property.
- To determine the share, you each own.
Read our separate article on property during divorce here.
What am I entitled to in a separation not married?
There isn’t a fixed rule on who gets what during a separation. It will depend on various factors in the relationship. The court will look at a number of key principles when considering a claim such as,
- The reason the property was purchased, for example was it intended to be the couple’s home?
- Any agreements made at the time the property was purchased as to how it would be split at the end of the relationship.
- Financial contributions, such as who paid the deposit, mortgage or maintenance costs.
- Non-financial contributions, such as childcare or looking after the property.
The court will weigh up these factors and decide whether either party has a beneficial interest in the property and the size of that interest.
You can read our other article on securing your living together rights as an unmarried couple here.
What can I do if my name isn’t on the mortgage, but I paid for the house?
Even if you are not named on the mortgage or listed as the legal owner, the court will consider all financial contributions made toward the property when deciding how it should be shared.
It’s important to remember that a mortgage is a contract with the lender. The responsibility for paying it rests with whoever signed the agreement.
Can the court order a transfer of property under TOLATA?
After separation, a house can only be sold by the registered owner or owners of the property. If the property is jointly owned, one person cannot sell it without the other’s agreement.
However, if a party believes they have a beneficial interest in the property, they can apply to the court under TOLATA for an order for sale or for it to be transferred to one party.
If a beneficial interest in the property has been established, the party who keeps the property will usually have to buy out the other party’s share. If one party cannot afford to buy the other out, the property will usually be sold on the open market. The sale proceeds are then divided based on each person’s share.
How do I start a TOLATA claim?
A TOLATA claim generally commences with a letter of claim being sent. This will set out:
- The grounds on which the claim is being made,
- A summary of the facts,
- What the party is seeking, and,
- A calculation of the monetary claim.
There is therefore some preparation to be done before the letter is sent. This often includes, calculating the financial contributions and getting some preliminary valuations for the property.
The other party will then respond with setting out their own position.
What happens to the house if we reach an agreement after separating?
If you and your partner can reach an early agreement, a settlement agreement can be prepared. Once signed, this will become legally binding.
This agreement can be incorporated in a wider separation agreement, which can cover other matters such as finances and who keeps any items which the couple purchased together.
What if we can’t reach an agreement?
If an agreement cannot be reached, the parties are encouraged to try mediation to resolve any areas of disagreement.
One of our team will be happy to assist you through the mediation process and can attend mediation with a jointly instructed independent mediator.
If the mediation fails, then the parties will need to issue court proceedings, usually as a last resort.
How do I protect my share in a house I bought with my ex?
TOLATA claims can be expensive and time consuming, especially if they go to court. One of the best ways for unmarried couples to avoid these claims is to enter a Deed of Trust (also known as a Declaration of Trust) when either party buys a property.
What is a deed of trust?
A Deed of Trust allows the parties to set out their intentions as to the ownership of the property in a binding agreement and will help to avoid any disputes in the future.
You can find out more about deeds of trust in our previous article here.
Specialist Dispute Resolution Solicitors
If you have any questions after reading this article, you can speak with one of our expert TOLATA solicitors on 01202 499255, or by filling out the form.
We offer all new clients a free initial chat.
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