Unlike the wide-ranging discretionary powers afforded to the Family Court that provides for the division of assets for married couples, especially in scenarios where one party is not on the title for the family home, the division of property for cohabiting couples is governed by the law of contract. The court’s powers under a TOLATA (The Trusts of Land and Appointment of Trustees Act 1996) are generally quite narrow
- it can order a sale of a property
- it can decide who is able to live in the property (but its scope is limited)
- it can declare what the parties’ beneficial shares in a property are, but it cannot vary them.
Beneficial interest in a property
In limited circumstances, where a property is registered in one party’s sole name, the "non-owning" party can make an application to Court to establish that they have a beneficial interest in the property. Such an application would be made pursuant to the very complex law of equity.
For the non-owing party to establish they have a interest in the property they would need to show the following:
- There was a common intention to share ownership despite the property being registered in one party’s sole name
- The non-owning party has acted upon that common intention to share the property to their detriment
A non-owning party ordinarily establishes that they have acted to their detriment by showing evidence of their financial contributions toward the purchase price of the property, such as mortgage payments, or by showing significant contributions to home improvements - perhaps building an extension, payment for landscaping, or double glazing and so on. When the contributions to the property are more commonly of a nominal value, such as redecorating, or paying an apportionment of bills, it is harder to prove that a party has acted to their detriment.
What is your share?
Provided that the first requirement is overcome by establishing that these principles apply, the next hurdle is establishing what the shares in the property should be. Unlike divorce proceedings, the division of assets is not made on a basis of need. TOLATA applications can be complex and are often very fact-specific; to establish the shares in the property, the Court look to what were the parties’ original intentions. Such intentions are established either from direct evidence, or by inferring what the parties’ intentions were from their conduct - this inference can be made even when the parties themselves were not clear on respective shares in the property.
Separation itself is stressful enough, and as you can see from the information outlined above, an application of this nature may seem a complicated and daunting task on top of the emotional pain. Our priority is to ensure we help you navigate this legal minefield and where possible, help you reach a swift and amicable resolution.
For advice on the implications of separating from an unmarried partner, please contact us today to speak to one of our expert solicitors.