A guide to an unmarried couples’ rights in property and children

When a married couple separate it is more widely understood how the splitting of the assets will go as there is distinct legislation concerning how this should be done.

However, the breakdown of a relationship between unmarried couples often raises complex legal questions, particularly when it concerns property and children.

A couple that is cohabiting does not automatically benefit from an automatic legal framework governing separation, instead these disputes are commonly resolved through the use of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and Schedule 1 of the Children Act 1989.

What is TOLATA?

TOLATA gives the civil courts power to resolve disputes concerning the ownership, occupation and sale of property or land where there is more than one party with interest in the property.It is most commonly relied upon by unmarried cohabitees where a relationship has ended and there is disagreement about who owns the property, how it should be shared, or whether it should be sold.These disputes often arise where one party is the sole registered owner of the property or where the legal title does not reflect the parties’ true intentions.

TOLATA allows the court to determine the existence and extent of any beneficial interest in a property and to make orders giving effect to that interest. This may include declaring ownership shares, regulating occupation of the property or ordering its sale so that proceeds can be divided fairly.

Trusts of land and beneficial interests

In order to bring a TOLATA claim, it must be shown that a trust of land exists. Trusts can arise in several ways.

An express trust exists where the parties have clearly documented their intentions, such as through a declaration of trust or where property is registered as joint tenants or tenants in common.

A constructive trust may arise where there was a shared understanding or agreement that both parties would have an interest in the property, even if this was not formally recorded, and one party acted to their detriment in reliance on that understanding.

A resulting trust can arise by operation of law where one party provides funds towards the purchase price, such as a deposit, but the property is registered in the other party’s sole name. Proprietary estoppel may also apply where one party makes promises or assurances about ownership and the other relies on those promises to their detriment.

The court will carefully examine the parties’ intentions, their financial contributions and the overall circumstances of the relationship when determining whether a trust exists and, if so, how the beneficial interests should be divided.

As such a there are multiple ways a person can gain interest in a property even if their name is not on the legal title.

Defending or preventing TOLATA claims

The best way to defend a TOLATA claim is often to prevent one from arising in the first place. Clear documentation of intentions before or during cohabitation is crucial. Declarations of trust and cohabitation agreements can significantly reduce uncertainty and the risk of future disputes. Keeping accurate records of financial contributions, including whether payments were intended as gifts or loans, can also be vital. Where disputes do arise, financial evidence and consistency in stated intentions can greatly assist in defending a claim.

Schedule 1 of the Children Act 1989

While TOLATA focuses on property ownership and interests, Schedule 1 of the Children Act 1989 addresses the financial needs of children born to unmarried parents. These claims are brought in the family court and are usually made by the parent with whom the child lives.

Schedule 1 enables the court to make a range of financial orders for the benefit of a child. These can include provision for housing, lump sums to cover significant expenses such as education or disability-related needs, and additional child maintenance where the paying parent is a high earner earning more than the Child Maintenance Service maximum threshold.

In deciding such claims, the court considers each parent’s income, earning capacity, financial resources and obligations, as well as the specific needs of the child. A key principle is that a child should be brought up in a manner that reflects the standard of living of the wealthier parent, ensuring fairness and consistency.

It is important to note that housing provided under Schedule 1 is usually for the child’s benefit only. In most cases, ownership of the property will revert to the paying parent once the child reaches adulthood, meaning it is not intended to provide long-term financial security for the other parent.

Using TOLATA and Schedule 1 together

In many cases, TOLATA and Schedule 1 claims operate alongside one another. TOLATA determines who owns a property and in what shares, while Schedule 1 can ensure that suitable housing and financial support is available for a child. Although these claims are brought in different courts, they often need to be carefully coordinated to achieve a fair and practical outcome for all involved.

Conclusion

Disputes involving property and children following the separation of unmarried couples can be legally complex and emotionally challenging. TOLATA and Schedule 1 of the Children Act remain the primary legal remedies available in these situations. With increasing numbers of cohabiting couples and children born outside marriage, these claims are becoming more common. Early legal advice, clear documentation and a willingness to explore settlement can make a significant difference to the outcome, helping to protect both financial interests and the welfare of children.

If you wish to discuss cohabitation planning or any particular claims you may have please contact us today!