Family Law Services

Unmarried Couples

Cohabitees, – what are your rights ?

Legal rights as a partner vary considerably, depending on whether the couple are married or if they are cohabitees. This is particularly apparent where the couple are separating and have assets they own together.

Where the couple are not married and are cohabitees, although the issue may appear as a ‘family law dispute,’ there are fewer legal rights for the parties, than if they were married, and they must make applications to resolve the dispute under the Trusts of Land and Appointment of Trustees Act (ToLATA) 1996.

There are 3 main ways in which property can be owed by cohabitants:

  1. Joint tenants; where each party has separate rights, however, upon the death of one party, the interest of the deceased joint tenant passes to the surviving joint tenant automatically.
  2. Tenants in common: where the interest of each party is held distinctly in their own shares. They are then able to transfer or dispose their interest without any interest of the other party being affected.
  3. The property is solely owned by one party. Usually this is where disputes often arise.

Under ToLATA 1996, the Court’s powers are narrow. The Court can only determine the proportions property is owned in as per the parties’ intentions, and cannot vary these proportions of co-ownership between the parties to a fairer position, as would be the case in financial settlement upon divorce.

What applications can be made?

Under ToLATA, there are 3 main types of application to be made:

  1. Order of a sale of the property.

The court must consider under s15(1) ToLATA:

  • The intention of the person creating the trust
  • The purposes for which the property subject to the trust is held
  • The welfare of any minor who occupies or who might reasonably be expected to occupy the land
  • The interest of any secured creditor of any beneficiary
  • Determine who is entitled to occupy
  • Determine to what extent and the nature of the ownership of a property owned.

What are some of the types of dispute that arise under ToLATA between cohabitees?

  1. Claims where there is an express declaration of trust:
  2. In general, where there is an express declaration of trust in accordance with s53 of the LPA 1925, then that is the end of the matter. This is done usually by ticking the TR1 Form’s box confirming the parties hold the property or trust as joint tenants or tenants in common in shares.
  3. There is no room in such instance, for the Court to vary the proportions of property ownership, unless it can be demonstrated that there is need for this to be done.
  4. There may be further issues raised however, as to where one party has made significant contributions to the property.
  • Claims that a declaration of trust regulating ownership of the property should be varied
  • In some instances, this is possible where there is “fraud or mistake” at the time of the transaction, allowing the parties to rectify the declaration of trust to give effect to the intentions of the parties at the time of the transaction.
  • Claims against the legal owner by a Claimant who is not on title documents.
  • Where one party owns the property, the party who is not the legal owner must demonstrate that there is a beneficial ownership. This is usually done by showing there was some form of agreement between the parties that the beneficial ownership should be shared.
  • One way of doing this is by establishing that there was a constructive trust:
    • There must have been a common intention between the parties. This may be express or implied.
    • There must have been detrimental reliance on this intention by the Claimant.
    • It must be demonstrated that it would be un-conscionable to dent the Claimant of their rights.
  • The issue then emerges, if it is found there was a constructive trust, how the Claimant’s share is to be quantified. The Court will turn to consider what is fair in line with the parties dealings between one another in relation to the property, as per Oxley v Hiscock [2005] Fam 211.
  • Claims to determine the proportion of beneficial ownership between joint legal owners in the absence of a declaration of trust
  • Usually, if the property is held as joint tenants, then this demonstrates there is a legal and beneficial joint tenancy.
  • If either party severs the joint tenancy, then both parties are beneficial tenants in common in equal shares, (e.g: 50-50) regardless of their original proportions of contributions to the purchase price of the property.
  • The Court will not usually alter the proportions from 50-50, in line with the House of Lords decision in Stack v Dowden [2007] AC 432, in which it was considered “a heavy burden” to disprove.
  • Claims regarding contributions to the relationship where one party believes they should be recompensated
  • Contributions can be used to determine the intentions of the parties although this can be difficult to assess correctly. the contribution may be a gift or a loan.

What if the case involves children?

Where the people with parental responsibility of a child are not married and are in the process of separating, then an alternative to a claim under ToLATA is to proceed with an order under Schedule 1 of the Children Act 1989 whereby the Court can make an order requiring settlement to be made for the benefit of the child, such as for one party to provide money to provide a home for the couple’s child.

How is a claim under ToLATA commenced?

The first step for the Claimant is to send a Letter before Action to the other party (the Respondent) setting out the case, alongside supporting evidence. The Respondent then has a specific amount of time to respond to the letter.

Following the Letter before Action, Court Proceedings can then be issued. It must first be assessed whether proceedings should fall under Part 7 or Part 8.

  • Part 7 proceedings include an N1 claim form and particulars of claim. These are more commonly used where there is a substantial dispute of fact anticipated.
  • Part 8 proceedings are used where there is not a dispute of fact and so, no need to put forward particulars of claim. The claim will include Form N208 alongside a witness statement.

The parties will then file their respective directions questionnaires, and the claim will be allocated to the appropriate track before case management directions are given and a trial date is set.

Can we help?

These disputes do not strictly fall under family law guidelines however it is an area that falls within our expertise, and a family-law approach should be favoured. We are able to offer competitive fees to assist you with your matter. Please contact our offices for us to provide further information, or arrange a mutually convenient consultation.

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