Cohabiting and the TOLATA Act
These days, it is becoming more and more common to live with a significant other without being married, either prior to marriage or with no intention of marrying at all. The latest government statistics from 2017 show that cohabiting couple ‘families’ – this includes those with or without children – are the fastest growing family type and account for around 3.3 million family households in the UK.
Despite this rise in popularity, in the case of separation, individuals do not have the same financial and legal protections as those who have been married have. There is a general misconception that ‘common-law marriage’ exists; however, in this country, that is not the case and after a relationship ends, cohabitation offers comparatively little in the way of legal rights.
- Cohabiting couple ‘families’ are the fastest growing type of family in the UK
- 2017 ONS statistics show that married or civil partnership families make up approximately 68% of UK families, with cohabiting couple families at approximately 17%
- Marriage rates are declining, with the latest available statistics showing the lowest level on record
- Research has found cohabiting couples have a separation rate up to five times higher than married couples
- Studies have found anywhere between 50-66% of cohabiting couples wrongly believe ‘common-law marriage’ laws exist and will offer legal protection in the event of a break up
- Research from Emoov found that mortgage affordability has declined since the market crash but also that, over the past 10 years, male mortgage affordability is on average 15% higher than for females due to differences in average salary – this demonstrates that buying a house with a partner is a necessity for many to get on the property ladder
If, after a relationship ends, you agree upon the splitting of assets then this need not be a difficult process. However, if disputes arise, it can be tricky to settle these in a way which both parties see as fair and will agree to. In these cases, mediation and negotiation should be attempted; these are processes which can be facilitated by a professional to try and settle on a mutually agreeable outcome. In instances where these methods do not work out, the dispute can be taken to the civil courts.
The legislation which gives courts the power to resolve property and land disputes between two or more owners or cohabitors is called The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Under TOLATA, courts can decide the legal owners of a property and the ownership proportions. Unlike divorce proceedings where assets are generally divided equally, TOLATA cases can result in very different proportional splits.
Factors affecting outcome
There are many factors which can affect the outcome of a dispute and often such cases come down to interpretation of intentions, conduct and communications. Influential factors in a case can include:
- Whether there is a signed express Declaration of Trust, confirming equal shares
- Whether the property in question is a home or an investment
- The ‘common intention’ – i.e. an express or implied agreement between the cohabiting parties regarding their entitlement and split of the property
- All contributions to the property, both financial and otherwise – for example, paying for repairs and refurbishments, carrying out upkeep and housework, looking after children, etc.
- The welfare of any children who live at the property
Cohabitation Agreements or a Declaration of Trust can be useful ways to set out both party’s expectations, intentions and even considerations such as contributions to upkeep and mortgages, circumstances for selling, and arrangements for children or pets if cohabitation ends. These documents, although not always set in stone, can help to provide clarity of ownership.
For legal guidance from experienced, fully accredited solicitors, trust in the professionals at Best Solicitors. We offer expert guidance which is clearly explained, with all cases being completed diligently and efficiently whilst keeping you in the loop. Our team are dedicated and friendly and can offer a wide variety of legal services ranging from property disputes and family law to commercial and business services. Don’t hesitate to get in touch with our helpful team with any enquiries.
Date: 24 April 2018