It’s an upsetting and difficult time for couples when they separate, and navigating the sharing of joint assets can be emotionally and often practically very difficult. Such divisions can be even harder for cohabiting unmarried couples who jointly own a property, or if one owns a property that they both shared. Claire Sargant, Senior Solicitor in the Family at local law firm Sydney Mitchell, explains how the law can help.
If you and your ex-partner jointly own a property, or if one of you owns a property that you both shared, a TOLATA claim can help determine your respective rights and interests in the property, including establishing your share in the property, enforcing a sale, or seeking compensation.
What is TOLATA?
TOLATA is an abbreviation of the Trusts of Land and Appointment of Trustees Act 1996. This legislation provides the court with the power to determine the ownership of property and land. Applications under TOLATA gives courts the power to make orders regulating property ownership, including ordering the sale of a property, declaring the parties’ beneficial shares in the property, and making orders on how the property’s trustees exercise their powers.
How can TOLATA assist unmarried couples upon separation?
Cohabiting unmarried couples have no legal protection under UK law, nor do they share the same legal rights as married couples or civil partners. A cohabitee is anyone living with their partner but who is not married to or in a civil partnership with them. Married partners or those in a civil partnership are automatically legally tied to one another regarding their property and assets, but this does not apply to cohabitees and makes things complicated in the event of relationship breakdown or death.
When unmarried couples separate and there is a dispute regarding property, the matter is dealt with under civil law rather than the matrimonial law which applies to married couples.
Upon separation it is not uncommon for disputes to arise over the extent of the parties’ ownership of a property. For example, it may be that the property is registered in the sole name of one party only, but the other party has made financial contributions to the property and is therefore seeking to claim a
share; or the property may be owned jointly by both parties but there is a dispute over the share held by each individual.
If a couple cannot reach an agreement over their respective entitlements, then either party can make an application so that the court determines each party’s interest in the property.
An application under TOLATA can be used and may be required if the parties cannot reach an agreement over what should happen to the property following their separation, whether this is that one party wants to sell the property and divide the proceeds of sale, or the other party wants to retain the property and delay the other party receiving their share of the equity.
Under TOLATA, the court can determine whether there should be an order for sale and if so, when the property should be sold.
Steps to take before making a TOLATA claim
Before an application to court is made, the parties should try to resolve matters by other means, such as negotiation or alternate dispute resolution (ADR) such as mediation. This can often be less confrontational, and time and cost effective.
If a resolution is not possible, the party opting to make a TOLATA application must send a letter of claim (also referred to as a letter before action) to set out their case, supported by any evidence they seek to rely upon and their proposed resolution. This evidence should include:
- A copy of the conveyancing file.
- Office copies from the Land Registry.
- A copy of the TR1 form filed with the Land Registry.
- Any communication such as emails or text messages showing an agreement made about the property.
- Evidence of financial contributions towards the property.
- Details of any secured creditors.
Factors the court consider when determining a claim
When assessing a TOLATA claim, the court will consider:
- The intentions of the parties and the purpose for which the property is held.
- The financial contributions made by the parties.
- The welfare of any children occupying the property.
- The interests of any secured creditor.
Is there a time limit?
Whilst there is no specific time limit for commencing a TOLATA claim, the court will be less sympathetic if there has been undue delay in bringing a claim. Delay could also make matters more complicated and pose practical issues such as relevant evidence no longer being available.
How long does it take to resolve?
The court proceedings of a TOLATA claim can often take 12 months to conclude. Timescales will depend on the complexity of the case and the court’s availability.
Founded over 260 years ago and with offices in Solihull and Birmingham, Sydney Mitchell LLP’s specialist team portfolio spans employment, commercial property, company and commercial services, Shareholder disputes, contract law, litigation, personal injury, insolvency, family and child law, residential property, dispute resolution, immigration, wills and probate, tax and trusts, and personal injury. It is a Top Tier Legal 500 firm, Lexcel accredited, seven-times winner of the Birmingham Law Society Firm of the Year (5-15 partners) / Regional Law Firm, and won the Excellence in Professional Services award in the Nachural Signature Awards 2025 Birmingham.
For more information, visit: www.sydneymitchell.co.uk