Most unmarried couples in a dispute over property must rely upon TOLATA [1996], which deals with trusts of land (whether express, implied, resulting or constructive).

The starting point will always be to see whether there is an express trust, or any documentation containing a declaration of trust, which clearly sets out the parties’ beneficial interests (whether as joint tenants or as tenants in common). Although all conveyancers should set out expressly the beneficial interests, in practice that is not always the case (especially with property conveyed prior to 1998, when transfer forms did not prompt conveyancers to set out the beneficial interests). A declaration of trust is key because it is conclusive – in the absence of mistake or fraud. In Goodman [1986], it was held that if there is a declaration that property is held as a joint tenancy, then when it is severed the parties become entitled to equal shares (and not in the proportions to which they contributed to the purchase price). Likewise, in Clarke [2005], it was held that because the parties had made a declaration at the time of transfer to hold the property as joint tenants, the fact that one had paid for extensive refurbishments and all the mortgage instalments, did not alter the 50/50 split.

Having said that, it should always be remembered that it is possible for an express declaration of beneficial interests to be varied formally at a later stage, and also – rarely – informally (eg if the person seeking to enforce it has acted upon an informal agreement to his or her detriment in the reasonable belief, shared by the other person, that the agreement was valid). Plus, of course, there can be arguments about constructive and resulting trusts, as well as about proprietary estoppel. For the authorities, see article in [2009] NLJ 1463.