Cohabitation and TOLATA Barristers

There is no such thing as a common law marriage in England and Wales. When cohabiting couples separate, the court has no power to divide their property according to fairness or need, as it can on divorce. Instead, the question is who owns what under the ordinary law of property and trusts. Claims about a shared home are usually brought under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, known as TOLATA, which lets the court declare the size of each person's beneficial share and decide whether the property should be sold.

The starting point depends on how the home is held. If it is in joint names with no express declaration of trust, the House of Lords in Stack v Dowden and the Supreme Court in Jones v Kernott held that equal beneficial ownership is presumed, and the person arguing for a different split must show the couple's common intention was otherwise, judged across the whole course of dealing. If the home is in one person's sole name, the other must prove a common intention that they would share ownership, and that they relied on it to their detriment. Paying towards household bills is often not enough on its own. A signed declaration of trust, such as the one on the Land Registry transfer form, will usually be decisive.

TOLATA claims are civil proceedings under the Civil Procedure Rules, not family proceedings. That matters in practice. The loser is normally ordered to pay the winner's legal costs, so pre-action letters, early disclosure and well-judged Part 36 offers can shape the outcome as much as the evidence. Where proprietary estoppel is argued, for example because a partner was promised a share and gave up something in reliance, the court has some flexibility in the remedy it grants.

If there are children, the parent with care may also have a claim under Schedule 1 of the Children Act 1989 for housing and capital to meet the children's needs during their dependency. A Direct Access Barrister can advise on both routes, draft your letter of claim, statements of case and witness evidence, and represent you at hearings, while you issue and serve documents and handle correspondence.

1. 1

   Title and Evidence Review

   Your Barrister reviews the register, the purchase documents, payment history and any messages about ownership, and gives a realistic view of the likely share and the costs risk.

2. 2

   Letter of Claim

   Before proceedings, you send a detailed letter of claim drafted by your Barrister, setting out the facts, the legal basis and what you want, and allowing a reasonable time to respond.

3. 3

   Negotiation and Offers

   Your Barrister advises on mediation and on settlement offers that put cost pressure on the other side, and on whether one party buying the other out is realistic.

4. 4

   Issuing Proceedings

   If the dispute does not settle, you issue a TOLATA claim in the County Court, or the High Court in larger cases, and serve it. The other party files a defence and sometimes a counterclaim.

5. 5

   Case Management and Disclosure

   The court allocates the claim to a track, sets a timetable and orders disclosure and witness statements. Your Barrister represents you at case management hearings and any application for an interim order for sale.

6. 6

   Trial

   At trial your Barrister presents your evidence, cross-examines the other party on what was said and done, and addresses the judge on the beneficial shares, any sale and the costs order.