Anybody give me advice on TOLATA?

Hi, anyone had experience in the process for division of assets for non married couples?

Thanks

Yep, they are very often straightforward but the main issues are in a mist of irrelevant issues which form the basis of the breakdown of the relationship.

As there is no marriage involved, the civil court has to deal with any dispute rather than the family court. The approach is broadly the same but the proceedings are costs-bearing which means that the loser has to bear their own costs and usually those of the losing party.

The orders that the court can make are limited. If there is a property involved, the orders will be limited to a declaration of interest for each party and a sale.

If the party is held jointly the assumption is that the property is owned in equal shares unless there is a document to specify to the contrary.

So, with that in mind, do you have any specific questions or information which could narrow the issues or assist further?

Charles

Hi Charles, thanks for the reply.

A very brief summary of my situation is this.
I bought a house in my name, deposit, mortgage and renovation costs.

My ex sold her house and moved in and paid £30k into my mortgage account from her sale proceeds. She has registered a Beneficial interest in the house.

We are not married but have a 4 year old child together.

We still live in the house together, separately since relationship ended September 2016.

My ex refuses to pay 1 penny to any of the monthly household bills including her Council Tax share.

She has recently instructed a solicitor and I have received a letter saying she is going for an occupation order even though I've tried numerous attempts at offers for us to sell the house, each get our investments back and split the profit.

So my questions are these if you can advise.

If she gets an Occupation Order and I have to leave, how in the future when our boy is 18 say is the property divided after sale.

Does the court take into account who has put what finances in?

There is only approximately £19k left on the mortgage, if I can afford it is it worth me paying it off to have a greater share in the future?

I hope I've explained things enough for you.

Thanks

Occupation orders usually have a short term and will be based upon an end date. In this case, if an order were to be granted it is likely to be subject to resolution of the property situation.

Having a child complicates things. If your ex were to apply for a Schedule 1 order under the Children Act 1989 this would allow the court to make a property adjustment order in your ex's favour. This would mean that the property goes to her and you move out. The order would only last until the child becomes independent at which point the interest in the property is returned to you or sold.

There is a half-way house where, if you can afford it, you could pay a lump sum to your ex (by order or by consent) to use as a deposit on a property. Again, the money would be the benefit of the child so you get it back once independence is reached - subject to any adjustment for the monies that are to be returned to your ex for her investment.

The court does take account of the finances put into the property but paperwork helps clarify things. The court has a six-point checklist set out in section 4(1) or Schedule 1:-

In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including—
4(1)
(a)the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(b)the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(c)the financial needs of the child;
(d)the income, earning capacity (if any), property and other financial resources of the child;
(e)any physical or mental disability of the child;
(f)the manner in which the child was being, or was expected to be, educated or trained.

Paying off the mortgage might not be the best thing to do at the current time. Which it will clear that liability, it reduces the options available to you which might backfire.

However, bearing in mind the number of different options, based upon specific issues in your case, I would seek legal advice – if only to see how reasonable your offer is, how likely your ex is to remain in the property (in light of earning capacity, value of the property, housing needs etc.), and other issues that might be of relevance.

Charles

Hi Charles,

Thank you very much for your reply.

Is it ok if I pm you regarding this matter?

Thanks,
Andy

Sure, I will try to help.

C

Thanks