Unmarried Couples and What Happens to Property When You Split Up – Understanding TOLATA
Many people still believe in the idea of a “common law marriage” – that living together for a certain amount of time gives you the same legal rights as a married couple. Unfortunately, this is a myth. In England and Wales, there is no such thing as a common law marriage, and unmarried couples don’t automatically have the same legal protections as those who are married or in a civil partnership.
This can lead to problems when a couple who live together decide to separate – especially if they own a property together. Disagreements often arise over who owns what, who has the right to live in or sell the property, and how any money tied up in the property should be divided.
How to Protect Yourself Before Problems Arise
If you’re planning to buy a property with your partner and you’re not married, it’s a good idea to put a Declaration of Trust in place. This is a legal document that sets out who owns what share of the property and reflects any unequal contributions, like if one person paid a larger deposit or more towards the mortgage. This can help avoid disputes later on if the relationship breaks down.
What Happens If You Split Up Without a Declaration of Trust?
If there’s no agreement in place and you separate, and you can’t agree on what should happen to the property, the law that usually applies is the Trusts of Land and Appointment of Trustees Act 1996, known as TOLATA.
TOLATA allows the court to:
- Decide who owns what share of the property
- Order the property to be sold
- Decide how the money from the sale should be divided
The court will look at things like:
- Who paid the deposit
- Who paid the mortgage and other bills
- Who paid for repairs or improvements that added value to the property
You don’t have to be named on the title deeds to make a claim – but you’ll need to prove that you contributed financially or that you and your partner agreed you had a share.
Getting Legal Advice
TOLATA claims are complex and follow specific court rules. Whether you’re trying to make a claim or defend one, you’ll need strong evidence and legal support to get the best outcome.
We strongly recommend speaking to a solicitor who specialises in property disputes. They can advise you on your rights, help you gather the right evidence, and guide you through the process.
We appreciate that separation can be daunting and at BHR we are here to guide you with expert legal advice and support. Please do not hesitate to Georgia on 01271 340668 or georgia.gibbons@bhrlaw.co.uk for a free initial discussion.