TOLATA Claims and Cohabitee Disputes


Cohabitee disputes are a complex area of law because of the lack of cohabitation rights in England and Wales. These types of disputes are rarely straightforward and often involve intricate legal concepts and emotionally charged situations. The most common area of dispute is property which is where TOLATA Claims come in.

In other articles we focus on cohabitee rights and how to legally protect yourselves in a cohabitee relationship and in Cohabiting Couples Separation Rights we provide a general overview of the common problems faced by separating couples.

In this article we specifically focus on TOLATA claims, constructive trusts, and beneficial interest. These legal concepts can provide some rights to a cohabitee that has does not legally own a property, but they have lived in it, maintained it and paid towards the upkeep the property. TOLATA can allow a Court to impose rights to a property which otherwise would not exist.

We aim is to provide an understanding of the legal framework of TOLATA which stands for the Trusts of Land and Appointment of Trustees Act 1996. We explore some of the options available to individuals involved in property disputes arising from cohabitation.

Understanding Cohabitee Disputes

Cohabitee disputes typically arise when a cohabiting relationship ends. The disputes often revolve around the division of property.

Unlike married couples, cohabitees do not have automatic rights to property. This is true even if they have lived together for many years as the law treats cohabitees as independent individuals. In England and Wales cohabitee rights are not yet recognised and as such, their property rights are determined by property law and not family law. The law does not automatically protect cohabitees’ property rights and so it is essential for cohabitees to take proactive steps to protect their interests.

This can lead to complex cohabitee disputes. The disputes often involve claims of beneficial interest or constructive trusts which help cohabitees protect their property interests.

Common Causes of Property Cohabitee Disputes

Cohabitee disputes often arise from a lack of clarity over property ownership. This is especially true when one party has made significant contributions to the property but is not legally registered as an owner. Cohabitee disputes occur when the relationship ends and the party who has no legal ownership, wants to claim a share of the property.

Another scenario is when a promise has been made, either in writing or verbally, that the non owning cohabitee relies on to gain an interest (ownership) in the property. When the couple separate and the legal owner reneges on that promise, TOLATA may provide a legal remedy.

In some cases, disputes arise when one party dies and the surviving cohabitee may face a dispute with the deceased’s beneficiaries, over the deceased’s property.

TOLATA Explained

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) is a key piece of legislation.

TOLATA is often used in cohabitee disputes regarding property. These claims can be complex but TOLATA provides a legal framework which allows cohabitees to establish their property rights. The Act allows the Court to put aside the official legal ownership of the property and to look at other facts and evidence to determine who owns a property and the extent of each party’s interest in that property.


When making a TOLATA claim it’s absolutely essential to seek legal advice from a family law solicitor and one that specilaises in cohabitee disputes. We cannot emphasise enough that it is a complex area of law and the Courts are not easily persuaded to make an Order to interfere with property ownership when it’s against the wishes of the official legal owner. To make such an Order they will only do so if they are provided with carefully considered and strong evidence to support such a claim.

Resulting Trusts and TOLATA

A resulting trust arises when a party contributes financially to the purchase of a property but does not have their name on the legal title. In such cases, the law presumes that the contributing party holds a beneficial interest in the property. This means that even though they are not the legal owner, they have a right to a share of the property based on their financial contribution.

In the context of TOLATA, resulting trusts can be relevant when determining the extent of each party’s interest in a property. If one party can prove that they contributed financially to the property, they may be able to establish a resulting trust and claim a share of the property under TOLATA.

Proving Beneficial Interest in Property

Proving beneficial interest in a property can be challenging. It requires strong evidence of a financial contribution. This can include mortgage payments or contributions to home improvements. In some circumstances, non-financial contributions can also be considered, for example when one half of the couple has stayed at home and raised children allowing the other half to work.

The court will consider all the circumstances. This includes the parties’ conduct and any agreements or arrangements they made.

Constructive Trusts

Constructive trusts are slightly different and can be harder to evidence. A constructive trust is based on the promise or expectation of a share in a property. Strong evidence to support such a claim would be a formal trust deed such as a Cohabitation Agreement which states that both parties intended to share the property even though only one is the legal owner.

However, in some circumstances the Court can declare a constructive trust even if there is no formal trust deed.

Establishing a Constructive Trust

Establishing a constructive trust can be complex. It requires proving certain elements.

First, there must be a common intention that both parties will have an interest in the property. This can be express or implied.

Second, the party claiming the trust must have acted to their detriment. In other words, there must be evidence that there was a common intention between the parties that both would have an interest in the property. Detriment means that the claimant must have suffered a disadvantage by relying on the promise.

Arguing and evidencing constructive trust is complex so it’s essential to seek legal advice from a family law solicitor who is experienced in TOLATA claims of this nature.

The Role of Family Law Solicitors

Family Law solicitors play a vital role in cohabitee disputes. They provide expert advice and representation; they can help parties understand their legal position. This includes potential claims under TOLATA or constructive trusts.

Solicitors can also assist in negotiating settlements which can avoid the need for court proceedings. Seeking legal advice is crucial in cohabitee disputes, particularly ones involving TOLATO Claims, should be done as early as possible. Legal advice can help parties understand their rights and options.

Mediation and Alternative Dispute Resolution

Mediation can be an alternative was to resolve cohabitee disputes. It involves a neutral third party helping the parties reach an agreement. Alternative dispute resolution (ADR) methods can also be used. These include arbitration and collaborative law.

Mediation and ADR can be less adversarial and more cost-effective than court proceedings. It can also allow for more flexible and creative solutions.

Seek Legal Advice

Cohabitee disputes can be complex and emotionally draining. Understanding the legal landscape, including TOLATA, resulting trusts, constructive trusts, and beneficial interest, is crucial. Seeking advice from a family law solicitor experienced in this area is highly advisable. Tyrer Roxburgh can help!

We pride ourselves on being friendly and approachable so if you need advice from one of our friendly solicitors, please do get in touch by calling 0208 889 3319 or via one of the options below.

The first introductory call is free and enables you to outline your circumstances and for us to explain how we can help. Our team are friendly and approachable and are always happy to answer your questions.

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