Written by Graeme Fraser

Partner & Head of Family at OGR Stock Denton

Graeme is a Partner and Head of OGR Stock Denton’s family team. He has particular expertise in advising on financial settlements involving complex assets and substantial wealth, and on cohabitation, for which he holds the Resolution specialist accreditation. His work often involves international aspects, and settlements involving commercial risk, such as insolvency or liquidity issues. Graeme has been trained by Resolution and subsequently developed part of his practice to include resolving disputes using the collaborative process.

If you split up without being married, the ownership of your family home and how it is to be divided is often the biggest source of financial dispute.

If the home is in joint names then this will almost certainly define what you are both entitled to.  Cohabitees should always pay attention to this when buying together.

But if your name is not on the deeds, it doesn’t necessarily mean you get nothing. You can make a claim to share in the family home at the end of the relationship, most commonly by demonstrating a “beneficial interest” in the home. A signed and witnessed document such as a declaration of trust or living together agreement is the best way to show that the non-owning partner is entitled to a particular share in the property.

TOLATA is complex, and early legal advice is vital in informing you whether and how to take action.

If no such document exists, and you are unable to agree what shares you and your unmarried partner have a claim under TOLATA (the Trusts of Land and Appointment of Trustees Act 1996).

If the non-owning partner has made significant payments towards the family home, for example, by making mortgage payments, and it can be shown that there was a “joint intention” that this would result in them having a legal share (called a beneficial interest), this might be enough. If you don’t have a formal document, it is difficult to demonstrate a joint intention.  However, if you clearly discussed the matter with your unmarried partner, and it can be shown that you were being promised a beneficial interest and you had made a financial or other contribution to the family home on that basis, then the Court can infer there was agreement.

TOLATA is complex, and early legal advice is vital in informing you whether and how to take action. Your family lawyer will discuss with you whether you can prove that you have a beneficial interest in the family home, and you should provide them with as much information and relevant paperwork as possible. A focused, sensible approach can help resolve the dispute without going to court at all.

Specialist family lawyers can also advise on alternative methods to resolve disputes, including mediation, collaborative law and arbitration, which are preferable in achieving an outcome that both you and your ex-partner consider fair, as well as often being cheaper and quicker. Resolution, the national organisation for family law professionals who seek to minimise confrontation in family law, hold details of specialist family lawyers in your area.

Going to court is stressful, expensive and slow, and the outcome may be very uncertain so you should only consider this as a last resort. If you lose your case you might have to pay some or all of your ex-partner’s legal costs.

The actual process of a TOLATA claim is complex. You really do need a specialist Family Lawyer to help you through this. Before you start you both are expected to exchange enough information so that you can understand each other’s position, and try to reach a settlement.

Once the court process begin, there are three main stages known as disclosure, inspection and evidence. The process is managed by the court throughout and if you are unable to settle your case will be listed for trial where both written and live spoken evidence (testimony) will be considered. It is best to try to reach settlement without requiring a trial in most cases because of the risks, uncertainty and costs both in money and time of going to trial.

Disclosure requires both parties to reveal what written evidence there is and you have a duty to disclose both the good and the bad.  It is a continuing obligation until the end of the case. You are required to carry out a reasonable search for documents and disclose a proportionate level of papers. Inspection is the process whereby disclosure is viewed, so that a decision can be made about which documents should be copied and obtained.

Settlement offers during TOLATA claims, are made by what is known as Part 36 offer. This is an offer to reach settlement, which must comply with certain rules. They carry costs consequences if it is refused by the party to whom the offer is made, depending on the ultimate outcome of the case. The offers will not be shown to the trial judge during the trial, but will be disclosed at the end of the trial when the judge considers who should pay the costs of the proceedings. A Part 36 offer is a useful means of attempting settlement without compromising the strength of your case. If you are experiencing domestic abuse or violence, you may be eligible for legal aid in certain circumstances, although this is more likely to cover occupation and restrictions on living arrangements than resolving ownership of the family home.  Claims can also be made in respect of children in certain circumstances, which again your specialist Family Lawyer can advise on.

TOLATA claims are time consuming, expensive and risky so are best avoided. If you think about things when you begin your relationship or purchase your family home you can avoid them. If buying a home together give clear instructions to your conveyancers; if  one of you own the home already enter into an express declaration of trust to clarify intentions as to beneficial ownership; have a living together agreement designed to avoid future disputes with your partner; and make  wills so it is clear what happens if one partner dies.



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