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The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) applies to unmarried couples who are involved in co-habitation disputes. If agreements regarding property cannot be reached either between the parties themselves, via mediation or the collaborative process, court proceedings will need to be issued.

Joint property

If a property is in joint names, registered as a joint tenancy, both parties have an equal and identical interest in the property or the net proceeds of sale of that property.

The starting point for the court is that the parties shall have a 50% share each. If one party believes they made greater contributions to the property than the other then it is down to them to prove this. The court will consider the actions and contributions of both parties in making a decision in relation to each party’s interest in the property.

If the property is in joint names but is held as tenants in common, the share of each owner will be specified, for example, in a Declaration of Trust. If there is a Declaration of Trust, it is unusual for there to be any departing from this, even if one party has contributed much more financially.

However, it is important that both parties entered into the Declaration freely and received independent legal advice at the time.

Property in the sole name of one party

If a couple live in a property which is held in the sole name of one party, it may be possible for the non-owner party to establish an interest in the property. There are various ways in which an interest can be established, the most common being direct financial contributions by the non-owner party.

If the non-owner can establish that direct contributions were made by them towards the property or mortgage, this may result in an interest proportionate to the amount contributed. Evidence of financial contributions is crucial and it is therefore important to ensure that monetary contributions are transferred electronically, from one account to the other, or directly towards the mortgage, so that bank statements can be produced if necessary.

Additionally/alternatively, if the non-owner can prove that the parties intended that the property be held jointly, and, as a result of this, the non-owner acted to their detriment, they may be able to establish an interest.

This would include either express discussions between the parties or behaviour that would be seen to reflect the intention to hold the property jointly. Making financial contributions to the property would be sufficient to show that the non-owner acted to their detriment.

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Nichola Bright

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Emily Barcilon

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Gemma Symons

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