This title is available as part of LexisLibraryFind out more or request a trial
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?
Family Law is the leading practitioner journal, ensuring all family law professionals keep up with the latest developments and their impact on practice. Each issue contains the latest news of legislative change, authoritative case reports, invaluable articles and news items written and compiled by experts for the practising family law professional.
The Red Book is the acknowledged authority on practice and procedure