Property rights

An application under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) may be made by a trustee of land, or a beneficiary with an interest in property subject to a trust of land. The court has a broad discretionary range of powers to make orders regarding the exercise of the trustees’ functions, or to the nature and extent of beneficiaries’ interests, including a sale or postponement of sale.

TOLATA 1996, s 15 requires the court to consider:

  1. the intention of the trust creator or creators

  2. the purposes for which the property subject to the trust is held

  3. the welfare of any minor, and

  4. the interests of any secured creditor

See Practice Note: Eligibility to apply under TOLATA 1996. The following Precedent letter may be sent by practitioners to their clients: Cohabitant claims under the Trusts of Land and Appointment of Trustees Act 1996—client guide.

Case law

Beneficial interests are determined and declared under established principles of trust law. The leading case regarding cohabitant disputes is Stack v Dowden [2007] UKHL 17, [2007]

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Monumental Supreme Court decision on matrimonialisation and sharing principle (Standish v Standish)

Family analysis: The Supreme Court’s much-anticipated judgment confirms unequivocally that the sharing principle does not apply to non-matrimonial property. Sharing of matrimonial property will usually be 50:50, though there may be a departure from equal division where justified. Non-matrimonial property typically has either a pre-marital origin, or, where it is received during the currency of the marriage, an external source (eg an inheritance). Title to an asset is expressly not determinative as to whether that asset is or is not matrimonial. Though non-matrimonial property may become matrimonial (ie ‘matrimonialisation’) this will depend on how the parties have been dealing with the asset and whether, over time, they have been treating that asset as shared between them. The concept of matrimonialisation is to be applied neither ‘widely’ nor ‘narrowly’ (contrary to what the Court of Appeal had held)—again, the enquiry should focus on how the parties have dealt with the asset. Where an asset is transferred from one spouse to another with the intention to save tax (as had occurred in the case), this will not normally show that the asset is being treated as shared. The Supreme Court ultimately upheld the decision to dismiss the wife’s appeal, though it did not wholly agree with the Court of Appeal’s reasoning. Pursuant to that decision (made on the sharing basis) the wife would be provided with circa £25m of the total assets figure of circa £132.6m, being half of the matrimonial assets figure of £50.48m. David Wilkinson, solicitor at Slater Heelis, considers the judgment.

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