How to Win a TOLATA claim on a property following separation
- What rights do unmarried couple have over their partners assets?
- What happens to a property jointly owned by unmarried couples?
- In what ways can an unmarried couple own property?
- What happens where a property is owned by one partner only?
- When can a TOLATA claim can be made under TOLATA 1996?
- What can a court order when dealing with a TOLATA claim?
- What factors do the court take into consideration when dealing with a TOLATA claim?
- What is the process for making a TOLATA claim?
- What happens where a defendant is defending a TOLATA claim following the pre-action protocol letter of claim?
- Can family lawyers help with TOLATA claims?
- Can a TOLATA claim be settled or withdrawn once proceedings have been issued?
- Can a TOLATA claim be settled or withdrawn once proceedings have been issued?
Consider a TOLATA claim to resolve your property dispute. Unmarried couples or a cohabiting couple, can suffer the heartache similar to a married couple when they decide to part ways and separate. However, do unmarried couples or a cohabiting couple have the same rights upon separation as those of a married couple following a divorce? An unmarried couples rights following a separation differ from those who were married and their divorce rights.
What rights do unmarried couple have over their partners assets?
Unmarried couples living together are referred to as cohabiting. This is one of the fastest growing family formation types in the UK. In 2019 as reported by the Office for National Statistics (ONS) 18.4% of the families in the UK are made up by cohabiting couple families. This is approximately 3.5 million couples who live together without entering into a marriage or civil partnership. Unmarried couples rights to property following separation differ vastly from those that entered into a marriage or a civil partnership.
Despite the number of years you may have been cohabiting together, if you are not married you do not have any automatic legal rights to your partners assets under family law. Upon separation one unmarried partner may not be able to claim ownership over the other partners property following a separation under family law.
Of course, this is different where an unmarried couple either jointly own a property or jointly rent a property. In such a situation a couple may agree between themselves to either sell the property and receive the income as per the share they had in the property or alternatively one partner may consider buying the other partners share in the property. Where cohabitees jointly own the property and one partner refuses to vacate the property they also have the option of seeking an occupation order.
What happens to a property jointly owned by unmarried couples?
Quite often an unmarried couple may jointly own a property in which they live in. when unmarried couples decide to call time on their relationship, they must be wondering how they can establish their rights over the property owned together. In such a situation the unmarried couple may turn to the legislation of The Trusts of Land and Appointment of Trustees Act 1996. This is known as TOLATA 1996. Under TOLATA 1996 the courts have the power to deal with issues concerning ownership of property where a couple are unmarried. Using TOLATA and despite not being able to change the co-ownership status or the shares, the courts can decide on which unmarried partner has the right to occupy the property and the extent of the unmarried partners ownership.
In what ways can an unmarried couple own property?
When an unmarried couple acquire a property ownership, they can do so in one of the following 2 ways:
- Joint Tenants – under this type of joint ownership both partners would obtain a joint mortgage and act as a single owner. Therefore, each partner would own the whole of the property and would have a 100% share in the property. In the event of a death of one partner the property would automatically pass to the other partner. Under this joint tenancy you are not able to leave a part of your property for someone else under the rules of wills and inheritance. This is also known as the right of survivorship.
- Tenants in common – under this type of ownership both you and your unmarried partner will own shares in the property i.e. one partner may have a 70% share whilst the other partner may have a 30% share in the property. With this type of ownership, you can leave your share of the property for someone in your will as well as being able to mortgage your part of the share separately. With tenants in common you may also own property with your friends, relatives or even children.
What happens where a property is owned by one partner only?
There may be occasions where despite you living in a property as a couple, the property is only owned by one partner. This partner will have a legal ownership over the property. In such a situation you may believe you have no rights over your partners property. However, when considering a TOLATA claim it is important to note that the courts will take into consideration the intention of the parties. Despite one partner not being a legal owner or owning the property jointly there may an intention for the home to be shared.
When you separate, you may feel that despite not legally owning the property you are at a loss despite the home being treated as a family home. This intention is known as a common intention. The party without the legal ownership must have relied on using the home as their home. They may have also contributed to the property by way of contributing financially towards the property or even by carrying out improvements to the home.
When can a claim can be made under TOLATA 1996?
Under the TOLATA 1996 there are various things you could ask for when making a claim. A TOLATA claim will be made when an unmarried couple are unable to reach an agreement or settlement as what should happen with the property they own.
When considering a TOLATA claim the courts will need to decide on the following two aspects:
- Who is entitled to occupy the property? &
- The nature and extent of the ownership of the property.
A claim will usually be made under TOLATA 1996 where there is a dispute surrounding who owns the property or whether there are issues surrounding which partner should remain in the property. Quite often where unmarried couples are unable to reach an agreement as to whether the property should be sold or how the proceeds from the sale of the property should be distributed, they may look to make a TOLATA claim.
What can a court order when dealing with a TOLATA claim?
When dealing with a TOLATA claim the court has many orders it can make at its disposal which are:
- An order to determine what share of the property is owned by each partner,
- An order to force the sale of the property or the land where one party may refuse to sell this,
- An order to provide one party access to the property where the other party is refusing to leave the property,
- An order to enable third parties to recover their interest in the property. This quite often applies to parents, grandparents or other relatives who may have contributed towards the property or have some financial interest in the property.
What factors do the court take into consideration when dealing with a TOLATA claim?
When dealing with a TOLATA claim there will be many considerations the courts will have. These are stated within section 15 of the TOLATA 1996 and are:
- The intentions of the people who created this trust.
- The purpose for which the property was held.
- The welfare of any children who occupy or may reasonable be expected to occupy the property as their home and
- The interests of any creditors.
What is the process for making a TOLATA claim?
The process of staring a TOLATA claim commences with one party sending the other party a letter of claim which is also known as the Pre- Action Letter. The letter of claim will provide the details of the dispute surrounding the property, the letter of claim will provide a background to the claim together with the legal principles being relied upon. The letter of claim will also need to detail what the party making the TOLATA claim proposes and what outcome they want the court to consider.
Once a letter of claim for the purposes of a claim under TOLATA 1996 has been issued the other party has 14 days to provide an acknowledgement to this letter. They must then provide a detailed response to the letter of claim confirming whether they accept what is being claimed or dispute this and confirm their intention of defending a TOLATA claim. Where more information is required to make an admission or to reject the claim then the defendant can request this information.
The claimant making the TOLATA claim will need to respond to any reasonable request for information to allow the defendant to consider the matter.
If the defendant accepts the claim, then this can commence negotiations to try and resolve the issues. Most commonly where a claim under TOLATA 1996 is accepted at the pre-action protocol stage, there may not be a need for the matter to proceed to the court where an agreement can be reached.
What happens where a defendant is defending a TOLATA claim following the pre-action protocol letter of claim?
Where one partner disputes the claim under the pre-action protocol stage they need to provide their full reasons for dispute and any documents or evidence they intend to rely upon defending a TOLATA claim. Where the party making the TOLATA claim still wishes to continue the claim they will need to commence court proceedings against the defendant.
The claim will need to be commenced by submitting a claim form and can be done either as a part 7 claim under the Civil Procedure Rules 1998 or as a part 8 claim. A part 7 claim form is issued where there are disputes of fact whereas a part 8 claim is issued where there is a dispute surround the applicable legal principles.
In both cases a claim form must be accompanied by a particular of claim. The claim form itself will detail what the TOLATA claim is for, the evidence intended to be relied upon for the claim, the value of the claim and what is being requested from the court. The particulars of claim which accompany the claim form will detail a statement of facts being relied upon by the claimant, whether any interest is sought, details of the damages being sought & any other information which may be relevant for the court.
The defendant will then need to respond to the claimants claim form and particulars of claim by either accepting the case or confirming their intention of defending a TOLATA claim. Where a defendant is defending a TOLATA claim, the defendant will provide their defence which details why they are disputing the claim. The matter will then be listed for a direction hearing and a case management conference before being listed for a hearing. During these stages there will be exchange of witness statements and details of any experts which are to be relied upon. During the hearing the court may require an expert to provide evidence at the hearing.
Can family lawyers help with TOLATA claims?
It is advisable to seek legal advice and guidance when considering a TOLATA claim. By approaching family lawyers, you may be able to resolve your matter surrounding your property without the need of going through court. At Kabir Family Law, our family lawyers will be able to advise you from the outset as to whether you own the property as joint tenants or tenants in common. We can also assist you with attempting to reach an amicable settlement with your partner and advise you how to ensure your rights are protected as an unmarried partner. where this fails or you are unable to reach an amicable agreement then we can assist you and guide you through proceeding with a TOLATA claim through the courts and the legal route.
Our specialist family lawyers at Kabir Family Law can provide you with advice on completing your claim form through to assisting you with completing your particulars of claim. We can review your information and instructions and assist you in making sure you clearly provide the information needed to obtain your rights.
Can a TOLATA claim be settled or withdrawn once proceedings have been issued by an unmarried couple?
A TOLATA claim can be settled at any time, even during the proceedings. There may be further evidence which has come to light which you may feel can affect your claim. If when defending a TOLATA claim you feel your prospects of success are less, you can decide to settle a claim prior to the hearing in order to limit your costs.
Similarly, where as a claimant you feel there is compelling evidence which may hinder your claim you can withdraw your claim to reduce further costs. At Kabir Family Law, we can provide you with advice and assistance during any time of your TOLATA 1996 matter and assist you in considering your prospects of success.
Can I consider a family law provision to protect the property interests of my children and myself instead of a TOLATA claim?
Our family lawyers with their expertise can advice you on family law procedures when dealing with your property as an unmarried partner. You may be able to pursue an occupation order to ensure you remain in your property following a separation.
Where children are involved we can also advise you on Schedule 1 claims where you are required to remain in a property in order to provide housing settlement for your children. Contact us today to arrange a free initial consultation.
Contact Kabir Family Law today for a free initial consultation on a TOLATA claim
If you are facing a situation where you are an unmarried partner and want to fight for your property rights then our family lawyers in Cardiff as well across York, Nottingham, London and Coventry can help. We can provide you with advice and also assist you with your TOLATA claim. You may find yourself in a situation where a claim has been made against you under TOLATA 1996. If so, we can guide you through defending a TOLATA claim. We provide family law advice nationally as well as internationally through telephone, email, and Skype. We will also ensure you are kept up to date with you matter and assist you developing a strategy to help you succeed. Contact us today for a free initial consultation by calling on 029 219 21400 to discuss your options or let us call you back.