A TOLATA claim is how a cohabiting property dispute is decided when unmarried partners fall out over a home and cannot agree who owns what. Because there is no divorce court to divide things for cohabitants, the question is not what is fair between you. It is what each of you owns under trust law, and what you can prove.
What is a TOLATA claim in a cohabiting property dispute?
A TOLATA claim is a court application under the Trusts of Land and Appointment of Trustees Act 1996 that decides the ownership and sale of a shared property. It is the main route for unmarried couples, and for friends or family who own together, because they cannot use the financial settlement rules that apply on divorce. The court works out the shares and can force a sale.
Under section 14 of the Act, a court has three main powers in these disputes:
- Order a sale of the property, so a party can be paid out their share of the equity.
- Decide who may occupy the property, and on what terms, while matters are resolved.
- Declare the shares, meaning it rules on whether a party owns a beneficial interest and how large it is.
Source: Trusts of Land and Appointment of Trustees Act 1996, s.14, as at August 2026, subject to change.
Do cohabiting couples have automatic property or inheritance rights?
No. There is no such thing as common law marriage in England and Wales, however long you have lived together or how many children you share. Living together gives no automatic right to a partner's property, no share earned by time, and no automatic right to inherit if they die. This is the single biggest misunderstanding behind these disputes.
The gap widens on death. A surviving cohabitant is not a spouse, so the intestacy rules pass nothing to them if their partner dies without a will, and the spouse exemption from inheritance tax does not apply either. A cohabitant can bring a separate claim under the Inheritance (Provision for Family and Dependants) Act 1975, but only after living together as a couple for the whole of the two years before the death, and any award is limited to what is reasonable for their maintenance.
Source: Inheritance (Provision for Family and Dependants) Act 1975, s.1, as at August 2026, subject to change.
So a cohabiting partner can face two separate problems: proving their share of a home during their lifetime under TOLATA, and having no safety net if the other dies. A will and a written record of ownership deal with both, which is why prevention matters more here than in almost any other area.
Which starting point applies to your dispute?
Your position depends almost entirely on how the property is held at the Land Registry and whether you ever recorded the shares. This decides who has to prove what, and it is where most people misjudge their chances. The table below sets out the three situations and the starting point for each.
| How the home is held | Starting point | What you must prove |
|---|---|---|
| Joint names, with a signed declaration of trust stating the shares | The declaration is usually conclusive | Little or nothing; the recorded shares normally stand unless the deed can be set aside |
| Joint names, no declaration of trust | Presumed equal, 50/50 (Stack v Dowden) | Anyone wanting a different split must displace a presumption the courts treat as heavy to shift |
| Sole name of one partner | That owner holds 100 per cent | The other partner must prove a beneficial interest exists at all, then its size |
Source: Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as at August 2026, subject to change.
The practical lesson is that a signed declaration of trust at the point of purchase makes most of these disputes go away, because there is nothing left to argue about. Its absence is what turns a separation into a claim.
How do you prove a beneficial interest if you are not on the deeds?
You have to show the court a trust: that although your name is not on the title, you hold a beneficial interest in the property. There are two routes, and the one that applies affects how your share is measured. Both need evidence, not just a sense of unfairness.
The first route is a common intention constructive trust. You show there was a shared intention that you would own a share, either from something said or agreed, or inferred from conduct such as paying towards the deposit or mortgage, and that you acted to your detriment in reliance on it. Where intention is shown but the split was never fixed, the court decides a fair share from the whole course of dealing between you (Jones v Kernott, 2011).
The second route is a resulting trust, which can arise where you contributed directly to the purchase price and the share reflects the size of that contribution. This is narrower, and in family-home cases the courts now lean towards the common intention approach.
Useful evidence includes bank records of deposit and mortgage payments, receipts for major works that added value, messages or letters showing what was agreed, and any record of promises made. General household spending, on food or bills, rarely counts on its own.
When the court is asked to order a sale rather than just declare shares, section 15 of the Act tells it what to weigh, including the purpose the property is held for and the welfare of any child who lives there. That can delay a sale, for example while children are still at home, even where the shares are clear.
Source: Trusts of Land and Appointment of Trustees Act 1996, s.15, as at August 2026, subject to change.
What does the TOLATA claim process look like?
Most TOLATA disputes settle by negotiation or mediation before a trial, because going the distance is slow and costly. Where court is needed, the steps below are the usual path in England and Wales. Simple, undisputed cases can use the shorter Part 8 procedure; contested ones follow Part 7.
- Pre-action correspondence. Each side sets out its position and the evidence for it, and tries to settle. The court expects genuine attempts to resolve matters before a claim is issued.
- Alternative dispute resolution. Mediation or a round-table meeting is offered, which resolves many disputes in a few months and keeps costs down.
- Issuing the claim. If no agreement is reached, one party issues a TOLATA claim at court with a statement setting out the interest claimed and the order wanted.
- The response. The other party files an acknowledgment and a defence, disputing the shares or the account of what was agreed.
- Directions and evidence. The court sets a timetable for witness statements, documents and often an expert valuation of the property.
- Trial. If it is still not settled, a judge hears the evidence and decides the shares, whether to order a sale, and how the proceeds are split. Contested claims that reach trial commonly take well over a year.
Costs follow the outcome, so the losing party is often ordered to pay a large part of the winner's legal costs on top of their own. That risk, and the strain of litigation, is why an early settlement usually serves both sides better than a trial.
How can you prevent a cohabiting property dispute?
You prevent these disputes by writing the ownership down before or soon after you buy, and by making a will. Almost every contested TOLATA claim traces back to something that was never recorded. Three documents remove most of the risk.
- A declaration of trust. Signed at purchase, it fixes each person's share, whether shares can change with later payments, and what happens on a sale. It is usually conclusive, so it stops the argument before it starts.
- A cohabitation agreement. This sets out how you own and share the property and other assets while you live together, and how you would divide them if you part.
- A will each. Because a cohabitant inherits nothing automatically, a will is the only way to leave your partner a share of the home or your estate. Review it if you buy, sell or refinance.
These are core parts of estate planning for unmarried couples, and they cost a fraction of a contested claim. If you already face a dispute, early advice on your paperwork and contributions is usually the cheapest step you can take. You are welcome to book a consultation to talk it through.
Frequently asked questions
These are the questions we are asked most about TOLATA and cohabiting property disputes. Each answer reflects the law of England and Wales and describes general rules rather than advice on your own situation.
What does TOLATA stand for?
TOLATA stands for the Trusts of Land and Appointment of Trustees Act 1996. It gives the court power to decide who owns a share of a jointly held property, who may live in it, and whether it should be sold, which is why it is the main route for cohabiting property disputes in England and Wales (legislation.gov.uk, as at August 2026, subject to change).
Can I make a TOLATA claim if I am not on the deeds or mortgage?
Yes, but you have to prove you hold a beneficial interest, because you start from nothing. You do this by showing a common intention that you would share ownership, together with contributions such as the deposit, mortgage or major works, and that you relied on that intention to your detriment. Records of what you paid and what was agreed are what decide these cases.
Do cohabiting couples have common law marriage rights?
No. Common law marriage does not exist in England and Wales, whatever the length of the relationship. Living together gives no automatic right to a partner's property and no automatic right to inherit from them. Any share of a home has to come from ownership recorded on the title, a trust you can prove, or a gift left by will.
Can I stop my former partner selling the property?
Sometimes. The court can decide who occupies a property and can refuse or delay a sale, weighing the factors in section 15 of the Act, including the purpose the home is held for and the welfare of any child living there. Registering your interest at the Land Registry can also protect your position while a dispute is resolved (legislation.gov.uk, as at August 2026, subject to change).
How long does a TOLATA claim take?
It varies widely. Many disputes settle through correspondence or mediation within a few months. A contested claim that goes to a trial commonly takes well over a year, and the losing party is often ordered to pay much of the other side's legal costs, which is why most cases are settled before trial.
What happens to the property if my partner dies without a will?
A surviving cohabitant inherits nothing under the intestacy rules, because those rules do not recognise unmarried partners. You would keep only your own share of the home and might have to claim under the Inheritance (Provision for Family and Dependants) Act 1975, which requires two years of living together as a couple and gives only maintenance. A will is the reliable way to provide for a partner (legislation.gov.uk, as at August 2026, subject to change).