When an unmarried couple separates, disputes about the family home are common. One person may want to sell the property while the other refuses. One partner may have paid the mortgage despite not being named on the title deeds. There may also be disagreements about deposits, ownership shares, or whether someone has a legal right to remain in the property.
Unlike married couples, unmarried couples do not benefit from the same legal protections on separation. There is no such thing as a “common law marriage” in England and Wales. Instead, disputes about property ownership are usually resolved through a TOLATA claim.
A TOLATA claim allows the court to decide:
- who owns what share of a property;
- whether the property should be sold; and
- how the proceeds of sale should be divided.
What is a TOLATA Claim?
TOLATA stands for the Trusts of Land and Appointment of Trustees Act 1996.
A TOLATA claim is commonly used where unmarried couples disagree about property ownership after separation. It can also apply to disputes involving siblings, friends, parents, or other joint owners.
The court can determine:
- whether a person has a beneficial interest in a property;
- the size of each person’s share;
- whether a property should be sold; and
- whether one owner should buy out the other.
Can I Force the Sale of a Jointly Owned Property?
If your ex refuses to sell a jointly owned property, you may be able to apply to court for an order for sale under TOLATA.
A co-owner cannot usually prevent a sale indefinitely simply because they do not wish to move. The court has the power to decide whether the property should be sold and how the sale should proceed.
Before issuing court proceedings, it is often sensible to attempt negotiation or mediation. A solicitor can send a formal letter setting out your position and proposed resolution. Many TOLATA disputes settle before trial once both parties understand the likely legal outcome.
When deciding whether to order a sale, the court may consider:
- the original purpose of the property purchase;
- the intentions of the owners;
- the welfare of any children living at the property;
- mortgage obligations; and
- the overall circumstances of the case.
I Paid the Mortgage But I’m Not on the Title Deeds
If the property is in your former partner’s sole name, you are not automatically entitled to a share of the property. However, you may still have a claim if you can prove you have a beneficial interest.
A beneficial interest is a right to share in the financial value of a property, even where your name does not appear on the legal title.
Evidence that may support a TOLATA claim includes:
- mortgage payments;
- contributions to the deposit;
- renovation or improvement costs;
- bank transfers;
- text messages or emails discussing ownership; and
- witness evidence.
The court will usually consider whether there was a shared intention that both parties would have an interest in the property and whether one party acted to their detriment in reliance on that understanding.
Can an Unmarried Partner Claim Half the House?
An unmarried partner can sometimes claim half the house, but this is not automatic.
If a property is jointly owned, the starting position is often that both parties own equal shares. However, this can sometimes be challenged if there is evidence that a different arrangement was intended.
Where the property is held in one person’s sole name, the other party must prove they have a beneficial interest. The size of that interest will depend on the evidence.
Importantly, TOLATA claims are based on property ownership principles rather than general fairness following the breakdown of a relationship.
Beneficial Interest Explained
The legal owner of a property is the person named on the title deeds. A beneficial owner is someone entitled to a share of the property’s financial value.
For example, one partner may legally own the property, but the other may have contributed to the deposit, mortgage, or major renovations on the understanding that the property belonged to both of them.
In those circumstances, the court may decide that the non-owner has a beneficial interest in the property.
Constructive Trust and Resulting Trust
Two common legal arguments in TOLATA claims are constructive trust and resulting trust.
Constructive Trust
A constructive trust may arise where:
- both parties intended that they would share ownership of the property; and
- one person relied on that understanding to their detriment.
This could include paying towards the mortgage, funding renovations, or making financial sacrifices because they believed they had an interest in the property.
Resulting Trust
A resulting trust usually focuses more narrowly on direct financial contributions to the purchase price.
For example, if one person contributed 30% of the deposit, they may argue they are entitled to a corresponding share of the property.
What Evidence Helps in a TOLATA Claim?
Strong evidence is often critical in a TOLATA dispute.
Useful evidence may include:
- Land Registry documents;
- mortgage statements;
- proof of deposit contributions;
- bank statements;
- invoices for renovations or repairs;
- text messages and emails discussing ownership; and
- evidence of financial arrangements between the parties.
Where possible, it is usually better to preserve complete message chains rather than isolated screenshots, as context can be important.
How Much Does a TOLATA Claim Cost?
The cost of a TOLATA claim will depend on the complexity of the dispute and whether the matter settles before trial.
Potential costs may include:
- solicitor’s fees;
- barrister’s fees;
- court fees;
- mediation costs; and
- valuation or expert evidence.
If the matter proceeds to trial, the court may order one party to contribute towards the other’s legal costs, although this is never guaranteed.
How Long Does a TOLATA Claim Take?
Some TOLATA disputes settle within a few months through negotiation or mediation. More complex court proceedings can take 12 to 18 months or longer.
The timescale will depend on:
- the complexity of the evidence;
- whether valuations are required;
- court availability; and
- the extent of the dispute between the parties.
What Happens if One Owner Stops Paying the Mortgage?
Where both parties are named on the mortgage, the lender will usually pursue both borrowers for missed payments, regardless of who remains living in the property.
If one party pays more than their fair share of mortgage payments or property expenses, the court may later take this into account when deciding how sale proceeds should be divided.
Speak to a TOLATA Solicitor
If you are involved in a property dispute after separation, obtaining early legal advice can make a significant difference.
Our solicitors advise on:
- TOLATA claims;
- beneficial interest disputes;
- cohabitation property disputes;
- orders for sale; and
- jointly owned property disputes.
We can assist with negotiation, mediation, and court proceedings where necessary.
To speak to our team, please contact us for confidential legal advice.
Related Resources
- HM Land Registry
- Trusts of Land and Appointment of Trustees Act 1996
- Citizens Advice guidance on cohabitation
Key Takeaway
If your ex refuses to sell the house after separation, a TOLATA claim may help resolve the dispute. The court can determine ownership shares, decide whether the property should be sold, and resolve disagreements about beneficial interests.
Because these cases are heavily evidence-based, early legal advice and proper preparation are often essential.
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