Understanding the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and Property Disputes Between Unmarried Couples

Created: 28 August 2025

In recent years, more couples have chosen to live together without marrying or entering into a civil partnership. While cohabitation may feel like marriage in many respects, the legal reality is very different, particularly when it comes to property rights. Cohabitees in England and Wales do not have automatic rights to each other’s property when the relationship ends. This legal gap often leads to complex and emotionally charged disputes, particularly over property ownership.

Why Cohabitee Disputes Arise

Cohabitee disputes typically occur when a relationship ends, and one party demands a share in a property that is legally owned by the other. This often happens in cases where one partner has made financial or non-financial contributions to the property but is not listed on the legal title. The absence of formal legal protection for cohabiting partners can lead to serious complications, especially where there was a shared intention or understanding regarding ownership.

The law in England and Wales recognises cohabiting couples as separate individuals, which means that, unlike spouses, they do not benefit from family law protections regarding property division. Instead, their rights are determined by strict property law principles and the Law in respect of Trusts, which can be both limiting and unforgiving.

The Role of TOLATA in Cohabitee Disputes

TOLATA provides a vital legal framework for resolving property disputes between unmarried couples. Courts can delve beyond legal ownership and explore both the intentions and contributions of each party. This is relevant when a partner claims entitlement, based on contributions or promises during the relationship, despite the property not being in their name. The court can explore a wide range of evidence to determine the extent of each party’s interest.

Common Causes of Disputes

Most cohabitation-related disputes stem from one or more of the following issues, such as unclear ownership arrangements, where the legal title is in one name, but both parties have contributed. It could be related to verbal or informal promises, where one partner believes they have a share in the shared home. Other issues could relate to financial contributions, such as paying towards the deposit, mortgage, or significant renovations. When disputes like this appear, TOLATA allows for claims based on constructive or resulting trusts.

Resulting Trusts and Constructive Trusts

A trust can develop where one party contributes directly to the purchase price of a property without being named on the legal title. The law often presumes that the contributing party intended to acquire a beneficial interest in return.

In contrast, a constructive trust focuses on the intentions and conduct of the parties. This may include verbal agreements. In such cases, courts will consider whether there was a common intention to share ownership, and whether one party acted to their detriment based on that understanding.

Constructing a claim under TOLATA can be challenging from both a legal and evidence-based perspective. Courts are often cautious about overriding the legal owner’s rights unless there is clear, compelling evidence to consider.

Mediation and Alternative Dispute Resolution

Before heading to court, many couples benefit from mediation or other forms of alternative dispute resolution (ADR). Mediation involves a neutral third party helping both sides reach a mutual agreement, while ADR methods such as arbitration and collaborative law offer structured alternatives to litigation. These approaches are often less detrimental to both parties, more flexible and affordable compared to court proceedings. They also allow for more creative and personalised solutions to property disputes.

Given the complexities involved, seeking legal advice at the earliest stage is essential. Family law solicitors with experience in cohabitation disputes can provide critical guidance on whether you have a valid claim under TOLATA, what evidence is needed, and how best to present your case. Legal professionals can also assist in negotiating out-of-court settlements, which can often be a less stressful and more cost-effective way to resolve disputes.

As more couples choose cohabitation over marriage, recognising the legal implications has become increasingly critical. The lack of automatic property rights for cohabiting partners means disputes can quickly escalate into legal battles, especially when there is no clear agreement about ownership. TOLATA plays a pivotal role in such disputes, but navigating the legal process requires careful preparation and expert guidance. Whether you live with your partner or are considering doing so, taking the necessary, proactive steps, such as entering into a cohabitation agreement or seeking early legal advice, can help protect your interests and avoid disputes in the future.

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