TOLATA 1996 and the Rights of Unmarried Couples
The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) is the primary legal framework governing property disputes between unmarried couples in England and Wales. Unlike the Matrimonial Causes Act 1973 which gives courts wide discretion to redistribute assets between divorcing spouses, TOLATA is a property law statute — courts applying it focus on the legal and beneficial ownership of the specific property in question, not on achieving a fair overall financial outcome.
Under TOLATA, a court can make orders about the occupation, sale, or management of a property held on trust. An unmarried partner who has contributed to the property — through mortgage payments, renovation costs, a deposit contribution, or other means — may be able to establish a beneficial interest even if they are not on the legal title. This is the legal claim known as a constructive trust or proprietary estoppel, established through contribution and detrimental reliance. However, establishing such a claim requires litigation, is uncertain in outcome, and takes time — during which secured lending on the property may be impossible.
Where property is held in joint names, the starting presumption is that both parties hold equal beneficial shares unless a Declaration of Trust says otherwise. A Declaration of Trust (or Deed of Trust) is a formal legal document that specifies the exact shares each party holds, which may reflect their respective contributions to the deposit and mortgage. If your property has a Declaration of Trust, this will be a key document for both the legal resolution of the separation and any subsequent secured loan application — it tells lenders exactly how ownership is divided.
Cohabitation agreements — contracts setting out the financial arrangements between unmarried partners — can also govern what happens to property on separation. While not automatically binding in the same way as a court order, they are increasingly recognised by courts as evidence of the parties' intentions and can form the basis of a negotiated settlement. If you have a cohabitation agreement, it should be reviewed by a solicitor at the point of separation to understand your rights and obligations.
Jointly Owned Property: Getting Lender Consent After Separation
If the property from which you wish to borrow is legally owned jointly with your former partner, you cannot obtain a secured loan without their consent. All legal owners of a property must agree to any charge placed against it — a lender will require every person named on the title to sign the mortgage deed. This is a hard legal requirement, not a matter of policy that can be waived. If your former partner refuses to consent, a secured loan is not available until either the ownership structure changes or a court makes an order.
The most straightforward resolution is to negotiate a transfer of equity — your former partner transfers their share to you (or vice versa), one of you becomes sole owner, and the sole owner can then borrow against the property. This requires agreement on the value of the departing partner's share, how that share will be paid out, and the conveyancing to effect the transfer. A family law solicitor experienced in cohabitation disputes can help negotiate these terms even without the involvement of the family court.
Where agreement cannot be reached, either party can make a TOLATA application to the county court seeking an order for sale or partition of the property. A TOLATA claim is civil litigation, can take twelve to eighteen months or more, and involves costs for both parties. It is a last resort. Mediation — either solicitor-assisted or through a professional mediator — is almost always a more cost-effective and faster route to resolution, and courts expect parties to have attempted mediation before issuing proceedings.
During any period of legal dispute, lenders will be extremely reluctant to lend against the property. Even if one partner wishes to borrow, the existence of a live property dispute creates legal uncertainty around the title that lenders cannot accept. The practical consequence is that obtaining a secured loan is effectively on hold until the dispute is resolved — either by agreement or court order.
