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ALEXANDER CHANDLER, Barrister, 1 Garden Court
Compared with ancillary relief, a TOLATA claim is not so much a different country as one inspired by the works of Lewis Carroll. Whereas the court exercises a broad discretion to achieve a fair outcome upon divorce, in claims between unmarried couples the position is, as Tweedledee would say, ‘contrariwise'. Through the TOLATA looking-glass, the court has no discretion to create an interest in land in favour of a cohabitee, however ‘fair' it might seem. Existing rights are declared according to the law of trusts. As Lord Scott of Foscote observed in Cobbe v Yeoman's Row Management Ltd  UKHL 55:
‘... under the present law of England . . . proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion . . . subjective views about which party "ought to win" . . . and the "formless void of individual moral opinion" ...' (para , citing Deane J in Muschinski v Dodds (1985) 160 CLR 583))
But how should the court quantify the shares of co-owners? Where an unmarried couple separates and one party takes on sole responsibility for the mortgage and other outgoings, does s/he acquire a greater share in the property or will his/her interest remain unchanged? In what circumstances will a court infer that the parties have agreed to adjust their shares in a property and is it open to the court to ‘impute' an intention that neither party in reality held?
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