Cohabitation and TOLATA Agreements & Disputes

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Cohabitation and TOLATA

At Ansham White Solicitors we are able to assist you on creating, drafting and implementing a cohabitation agreement and fully advise as to what it entails. Such agreement can consist of the following:

  1. Property obtained
  2. What party owns what assets
  3. Mortgage agreements and other property

A Cohabitation Agreement will be tailored to meet a clients individual needs and circumstances as we recognise that no two cases are same. This can provide you succinct advice if your relationship breaks down.

Cohabitation disputes are commonly resolved through trust law. This is because the law of England and Wales does not recognise a “common law” husband and wife. Many individuals wrongly assume that they enjoy the same rights as those whom are married or in a civil partnership, however, this is far from the case. For cohabitants, financial settlements are largely based on the income and assets that each respective party came into the relationship with.

Therefore, Resulting and Constructive Trusts are the two main legal concepts applicable when assessing whether an individual has an equitable stake in a property which may not be in their names.

Resulting Trusts

A resulting trust arises where an individual whom is not the legal owner has made a direct financial contribution to the purchase of the property or the mortgage and that the contribution was not intended to be a gift or a loan. If a resulting trust is present, then the share in the property is often assessed based on the amount of the contribution proportionate to the amount of financial contribution that have put into the property. Where necessary a constructive trust may exist alongside it.

Constructive Trusts

A constructive trust arises where there is an agreement between two or more parties. To create this type of trust, either an express agreement must be made or an individual can demonstrate common intention.

The Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA) provides the protection to an individual who has a trust. This statute provides the Courts with the discretion to determine the size of the relevant shares and whether a property should be sold in order to split the asset. It is common to bring a claim under TOLATA even where an individual is not a registered owner of the land.

Please call us today to arrange an initial fixed fee consultation, our family team will be more than happy to help. Our office is based in North Harrow which has nearby parking and good transport links.  If you are calling from overseas or are unable to attend our office, we are able to conduct a video consultation via either Zoom or Microsoft Teams.

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