Splitting Up When You Are Not Married: TOLATA Claims in England and Wales

There is no such thing as a common-law marriage in England and Wales. Live with a partner for two years or twenty, raise children together, split every bill down the middle — none of it gives you the rights a spouse acquires on the day of the wedding. Surveys repeatedly find that almost half of cohabiting couples believe the law treats them as married after a few years under one roof. It does not — and the discovery tends to arrive at the worst possible moment: the relationship has ended, and one of you is standing in a house the other says they own.

What fills the gap is not family law but property law. When an unmarried couple separate, the question of who owns the home — and whether it must be sold — is answered by the law of trusts, and the vehicle for getting a court to answer it is the Trusts of Land and Appointment of Trustees Act 1996, universally shortened to TOLATA. A TOLATA claim is not a divorce. There is no redistribution according to need, no sharing of pensions, no maintenance for a former partner, no judicial discretion to do what seems fair. The court's task is narrower and colder: to declare who owns what share of the property, and to decide whether and when it should be sold.

This guide explains how the courts answer those two questions — the trust principles from Stack v Dowden and Jones v Kernott, proprietary estoppel where promises were relied on, the evidence that decides these cases, orders for sale and occupation rent, the very real costs risk, and the practical steps that stop a dispute arising at all.

A property claim, not a divorce

When a marriage ends, the family court can redistribute assets according to needs, contributions and fairness. Cohabitants get none of that, however long the relationship lasted: their claims stand or fall on strict property law — legal title, trusts and estoppel.

Under sections 14 and 15 of TOLATA, anyone with an interest in the land can ask the court to declare each person's beneficial share, order a sale, or regulate who occupies in the meantime. What the court cannot do under TOLATA is adjust those shares because one partner is worse off, gave up a career, or needs somewhere to live. If the trust analysis says you own nothing, TOLATA gives you nothing.

Reform has been on the table for nearly two decades — the Law Commission recommended remedies for cohabitants in 2007, and the Government has more recently said it will consult on cohabitants' rights — but none of it is law. Until Parliament acts, the rules below are the rules.

Joint names: the paperwork usually wins

Start with the Land Registry title. If the home is registered in both names, the first question is whether the couple signed a declaration of trust — either as a separate deed or in the panel on the standard transfer form (the TR1) inviting joint purchasers to state whether they hold as joint tenants, as tenants in common in equal shares, or on other trusts.

If that panel was completed and the form properly executed, the case is usually over before it begins. An express declaration of trust is conclusive as to the beneficial shares, absent fraud, mistake or a later agreement or estoppel varying it: Goodman v Gallant [1986] Fam 106. It does not matter that one of you paid the whole deposit or has made every mortgage payment since. The paperwork wins.

Where there is no express declaration — surprisingly common, because the panel was often left blank — the starting point comes from the House of Lords in Stack v Dowden [2007] UKHL 17: equity follows the law. Joint legal owners are presumed to be joint beneficial owners, entitled equally. That presumption can be displaced only by evidence that the couple actually intended something different, and the burden of showing so is a heavy one. In Stack itself the presumption was displaced on unusual facts — the couple had kept their finances rigidly separate throughout a long relationship, and one partner had contributed far more — and the shares were set at 65 and 35 per cent.

The Supreme Court refined the approach in Jones v Kernott [2011] UKSC 53. Two points matter for ordinary separating couples. First, the parties' common intention is found objectively from the whole course of dealing in relation to the property — not just who paid the deposit, but how they arranged their finances over the years. Second, intentions can change. In Jones one partner moved out after the relationship ended, bought a home of his own and contributed nothing further for well over a decade; the original intention of equality had shifted, and the shares were set at 90 and 10. Where the evidence shows an intention to share but not the arithmetic, the court may impute the shares it considers fair in light of the whole course of dealing — but imputation fills a gap at the quantification stage. It is not a licence to redistribute.

Sole name: proving an interest from scratch

If the home is registered in one partner's name alone, the presumption reverses: the legal owner is presumed to own the whole beneficial interest, and the non-owner must prove otherwise. This is the harder road, and it is where most cohabitation heartbreak happens.

The usual route is the common intention constructive trust, which requires two things. First, a common intention to share the beneficial ownership — shown by an express agreement or understanding (a conversation, however informal, that the home was to be "ours"), or inferred from conduct, classically direct financial contributions to the purchase price or the mortgage. Second, detrimental reliance: the claimant acted to their detriment on the strength of that intention — paying towards the property, funding substantial works, or otherwise arranging their life around an ownership they believed they had.

Two hard truths follow. Paying the gas bill, the food shop and the childcare while your partner pays "their" mortgage may feel like an equal partnership, but contributions to general household expenses, standing alone, have historically struggled to found an interest — though they count once an intention to share is otherwise established. And a partner who genuinely was promised a share but has nothing in writing faces a contest of recollection a decade after the event — which is why evidence matters more than doctrine.

What about resulting trusts?

The older analysis — the resulting trust, under which contributing part of the purchase price presumptively earns you a proportionate slice — has largely been displaced in the domestic context by the constructive trust approach of Stack and Jones. It still matters where a property was bought as an investment, or where a parent or other third party put money in, but for a couple's own home the constructive trust framework governs.

Promises, reliance and proprietary estoppel

Proprietary estoppel runs alongside the trust claims and sometimes succeeds where they fail. It needs a promise or assurance that the claimant would have an interest in the property, reasonable reliance on it, and detriment suffered in reliance — with the whole picture making it unconscionable for the promisor to go back on their word. The classic cases involve farms and decades of underpaid labour, but the doctrine applies just as well to "this house will be yours one day" said across a kitchen table.

On remedy, the Supreme Court's decision in Guest v Guest [2022] UKSC 27 is the modern reference point. The court's aim is to undo the unconscionability of the broken promise, and the normal starting point is to hold the promisor to the promise — or its monetary equivalent — though it can moderate the award, for instance where the claimant receives early what was promised only on death. For a cohabitant, estoppel is most valuable where there were clear assurances and obvious detriment, but no direct payments towards the purchase.

The evidence that decides these cases

Cohabitation claims are won and lost on documents, not doctrine. By the time a dispute reaches a courtroom, each side sincerely remembers a different relationship. Judges know this, and contemporaneous paper beats recollection almost every time. The materials that matter:

The TR1 and the conveyancing file. The transfer form, the solicitors' file from the purchase, and any declaration of trust. If a declaration exists, it will usually decide the case.
The money trail. Who paid the deposit and where it came from; bank statements showing who paid the mortgage; remortgages and where the released money went.
How the finances were run. Joint accounts and pooled resources point one way; rigid separation, as in Stack, points the other.
Written traces of intention. Emails, messages and letters discussing ownership; wills naming each other; anything in which either partner described the home as shared — or pointedly did not.
Works and improvements. Invoices and payments for renovations, especially substantial ones funded by the non-owner.

If you are at the start of a dispute, gather and preserve these now. If you are years away from any dispute, the same list is a guide to what to keep.

Orders for sale, section 15 and occupation rent

Declaring the shares is half the battle; the other half is what happens to the house. Under section 14 the court can order a sale, refuse one, or postpone one, and section 15 tells it what to weigh: the intentions of those who created the trust, the purposes for which the property is held, the welfare of any minor who occupies or might reasonably be expected to occupy it as a home, and the interests of any secured creditor. The wishes of the beneficiaries are also relevant.

Where the property was bought as a home for the relationship and the relationship has ended, its purpose has usually ended too, and a sale will generally be ordered — though children, or one partner's realistic ability to buy the other out, can delay or reshape it.

The court can also account for money moving between the parties through equitable accounting. A partner who stayed in the property after excluding the other may have to credit the excluded partner with an occupation rent; one who kept paying the mortgage, insurance or essential repairs alone after separation can claim credit for the other's share of those payments. The exercise is broad-brush rather than forensic, but it can shift the final numbers meaningfully.

Where children are involved: the Schedule 1 signpost

The welfare of a minor occupying the home is a factor under section 15, but TOLATA is not a child-welfare regime. A separate claim exists under Schedule 1 to the Children Act 1989, under which a parent can seek financial provision for the benefit of a child — including an order that a property be settled or transferred to provide the child with a home, typically until adulthood or the end of education, after which it reverts. Schedule 1 claims often run alongside TOLATA claims and follow family-court procedure. Treat this as a signpost: they deserve their own advice.

Procedure, costs and why most claims settle

Part 8 or Part 7

A TOLATA claim is an ordinary civil claim, issued in the County Court or the High Court. Where the facts are not seriously in dispute — the shares are agreed and the only question is whether the property should be sold — the streamlined Part 8 procedure is appropriate. Where the beneficial interests themselves are contested, which is the usual battleground, the claim proceeds under Part 7 with statements of case, disclosure, witness statements and a trial. Before any of that, a well-constructed letter of claim setting out the trust analysis often does more to produce settlement than anything that follows.

The costs risk is real

Here is the trap for anyone drifting into a TOLATA claim with a family-court mindset. In family financial proceedings the usual rule is that each side bears its own costs. A TOLATA claim is civil litigation, and civil litigation runs on costs-shifting: the loser generally pays the winner's costs as well as their own. A fight over a quarter-share of a modest house can generate combined costs that rival the equity at stake, and the loser can face most of them. Well-judged settlement offers — Part 36 offers and Calderbank offers — reshape that risk and put real pressure on an opponent who overreaches; see our guides to costs orders and Part 36 and Calderbank offers for how the mechanics work.

Mediation settles most of these

Courts expect parties to attempt alternative dispute resolution, and TOLATA disputes suit it unusually well: the asset is known, the framework is settled, and the range of realistic outcomes is narrow enough for a mediator to bridge. Most claims settle before trial; the ones that do not are often those where costs have already consumed the equity being fought over. Make a sensible offer early, in writing, and keep it open.

Protecting yourself before it goes wrong

Almost every TOLATA dispute was preventable with an hour of paperwork at the right moment.

Declare the trust at purchase. Complete the TR1 declaration panel or sign a separate declaration of trust recording the shares — especially where the deposits are unequal. It is conclusive, and it costs little.
Make a cohabitation agreement. A written agreement dealing with the home, contributions and separation is powerful evidence of intention and often decisive in practice.
Moving into a partner's house? Get any promise in writing. If the understanding is that you are acquiring a share, record it — a signed note or even an email exchange can transform your position years later.
Keep records. Deposits, mortgage payments, renovation invoices. A contribution you cannot prove may as well not have happened.
On separation, act on the title. Joint tenants should consider serving a notice of severance so survivorship no longer applies, and both should review their wills. A non-owner claiming an interest in a sole-name property can apply for a Land Registry restriction so the home cannot quietly be sold or remortgaged.

A cohabitation property dispute is a strange hybrid: the emotions of a divorce, fought under the rules of commercial litigation. The way through is to treat it as the property claim it is — establish what the documents say, build the trust or estoppel analysis honestly, quantify the realistic range, and settle within it. Ask CommonBench's Legal Chat to work through the joint-names or sole-name analysis on your facts, test how Stack and Jones apply to your contribution history, and pressure-test a settlement offer before you make or refuse one.

This article is published by CommonBench for informational purposes only and does not constitute legal advice. If you are separating from a partner and need to understand where you stand on the home before you negotiate, try CommonBench — AI-powered legal research with verified citations across five common law jurisdictions.