By Sital Somaiya, Founder and Solicitor. Last reviewed 14 October 2026.
If you are unmarried, separating, and the home you paid towards is in your partner's name alone, you are in one of the hardest positions in family law. This post explains why, what the courts look for, and what you can do now to protect your position.
For the full TOLATA process, from the first letter to a final hearing, see our step by step guide to TOLATA claims.
Why the deeds matter so much
When a married couple divorce, the family court can redistribute assets according to what is fair and what each person needs. It can order maintenance, share pensions and move property between them.
Unmarried couples get none of that. A dispute about the shared home is decided under the Trusts of Land and Appointment of Trustees Act 1996, a property statute, applying ordinary principles of trust law. The court's job is largely to decide who owns what share and whether the property should be sold. It cannot award maintenance, share a pension or order a lump sum simply because you need one.
That is why the starting point is always the title.
Joint names or sole name: two very different starting points
| Home in joint names | Home in your partner's sole name | |
|---|---|---|
| Starting presumption | You own it equally. | Your partner owns all of it. |
| Who has to prove otherwise | Whoever argues for unequal shares. | You, to show you have any share at all. |
| Leading cases | Stack v Dowden [2007] UKHL 17; Jones v Kernott [2011] UKSC 53 | Jones v Kernott [2011] UKSC 53 |
If the property is in joint names, the law presumes you share it equally. Either of you can argue for different shares, for example because one paid far more of the deposit, but the person arguing for a departure from equality has to prove it.
If the property is in your partner's sole name, the legal owner is presumed to own the whole of it. To claim a share you must first show that you both intended you to have one. Usually that means direct contributions to the purchase price or mortgage, or an express understanding about ownership which you then relied on to your detriment. Once that intention is shown, the court looks at the whole course of dealing between you to decide how large your share is.
What does not count on its own
This is where people are most often shocked. None of the following, by itself, gives you a share of a house you are not on the title of:
- Paying the household bills, food or council tax for years
- Paying for a new kitchen, an extension or a loft conversion
- Giving up work, or reducing your hours, to raise children
These things can matter as part of the wider picture once a shared intention has been shown. They rarely get you there on their own.
Why these cases get expensive
The court is being asked to reconstruct what two people intended, often many years ago and usually with nothing in writing: what was said when the deposit was paid, whether the house was described as "ours", what the contributions were actually for.
Both sides remember those conversations in their own favour. That is not dishonesty. It is memory. But it means the evidence is contested, outcomes are hard to predict and early settlement is difficult. Meanwhile the costs are paid out of the very asset being argued over.
If you have children
The TOLATA claim about the house works the same way whether or not you have children. Children add a separate route: a claim under Schedule 1 of the Children Act 1989 for financial provision for their benefit. That can sometimes secure a home for the children until they finish their education. It is provision for them, not for you, and the property usually goes back afterwards. Arrangements for where the children live are dealt with separately, through our child arrangements team.
Would the 2026 reforms help?
The Ministry of Justice consultation A Fairer End to Relationships closed on 14 August 2026. It proposed a scheme under which qualifying cohabitants, those who have lived together for at least three years or have a child together, could apply for a lump sum, a property transfer or a pension share. Qualifying couples who had not opted out would no longer need to rely on TOLATA for a claim against property.
It would be a real improvement, but read the limits:
- The sharing principle that applies on divorce would not apply.
- Needs would be read more narrowly, focused on essential rather than discretionary needs.
- Claims would have to be brought within two years of separation.
- Clean breaks would be the default, and ongoing maintenance the exception.
- Couples could opt out by written agreement, subject to safeguards.
- TOLATA would not disappear. Anyone outside the qualifying definition, anyone who opted out and anyone out of time would still be arguing about trusts.
Most importantly, none of this is law. No Bill has been introduced and the Government has not set a timetable. If you are separating now, your case is a TOLATA case. Our cohabitation law reform guide covers the proposals in detail, and what you're legally entitled to after years together explains the wider position of unmarried couples.
What to do if you are in this position
Do not move out casually, and do not sign anything before taking advice. Both can affect your position in ways that are hard to reverse.
Gather your evidence early. Bank statements showing what you paid and when. Messages or emails about ownership, the deposit, or what would happen if you split up. Receipts for money spent on the property. In a dispute about what was intended, documents written at the time beat recollection every time.
Get the title checked. Whether you are named, and if so how the property is held and in what shares. It takes very little time and it frames everything else.
Ask about alternatives to court. Mediation and negotiated settlement resolve many of these disputes at a fraction of the cost of a trial, and preserve more of the asset. Our guide on how mediation sessions work explains what to expect.
If you are leaving an abusive or controlling relationship, your safety comes first. Protective orders such as a non-molestation order can be obtained quickly, and legal aid may be available where there is evidence of domestic abuse.
Frequently asked questions
I paid towards the mortgage but not the deposit. Do I have a share?
Possibly. Mortgage payments can be evidence that you both intended you to have a share, especially where there was an understanding about ownership. Whether it is enough depends on the whole history of the relationship and the property, so take advice early and keep your bank records.
Do I have to move out if the house is in my partner's name?
Not straight away, and you should not leave before taking advice. Leaving can affect your practical position and your evidence. If there are safety concerns, the court can make orders about who lives in the home.
Is legal aid available for a TOLATA claim?
Legal aid is not usually available for TOLATA claims. It may be available for related matters, such as protective orders where there is domestic abuse. Our fees page sets out how we charge.
Talk to us
Signature Law acts for unmarried couples in Romford, across Essex and in East London in property and cohabitation disputes, including TOLATA claims and Schedule 1 applications, alongside cohabitation agreements, children matters and wills. Our founder, Sital Somaiya, holds the Law Society's Family Law Advanced Accreditation. We can meet online or in person.
If you are separating and there is any doubt about where you stand on the house, get it clarified before you make decisions you cannot easily undo.
Request a callback, or call 01708 398 851.
