For unmarried couples, it can be difficult to deal with the property when they separate, particularly if they climbed the property ladder and had a family together. It is generally the case that they intended to hold equal beneficial shares up to the point of their separation and following that, their interests would be altered based on their contributions to the property.
When considering their imputed shares, the court would consider the whole course of dealing between them in relation to the property, including their contribution to mortgage repayments and payment of costs of improvements for the property. The court would also consider their payment of council tax and insurance, though limited weight would be given as they are primarily a liability for occupation rather than ownership.
Fotheringhame v Nelsons [2026] EWHC 632 (Ch)
TOLATA property dispute: the Fotheringhame v Nelsons background
Ms Fotheringhame was the Appellant and Mr Nelsons was the Respondent.
The parties cohabited from approximately 1992/1993 until January 2003 when they separated. They had three children together. They purchased their first property together with the deposit gifted by the Appellant’s mother and a joint mortgage. They later sold their first property and purchased their second property together in 2000, which was funded by the net sale proceeds and a building society mortgage. Shortly after the purchase, a partial lump sum payment was made to the building society from the Appellant’s inheritance from her grandmother. In October 2002, the parties borrowed additional money secured by legal charge for property renovations. From April 2003, the Appellant was solely responsible for property-related expenditure including mortgage interest, council tax, property repairs and maintenance, and all payments for a joint endowment policy. In October 2023, the Respondent sold an ISA forming part of the joint endowment policy and retained all proceeds without informing the Appellant. In June 2023, the Respondent began a claim under the Trusts of Land and Appointment of Trustees Act 1996 for determination of his beneficial interest and an order for sale. The Appellant counterclaimed for outstanding child maintenance payments, which was dismissed on limitation grounds.
Decisions
At first instance, the court declared the parties to hold the property on trust for themselves beneficially in shares: Appellant 80.7% and Respondent 19.3%, and permitted the Appellant to buy out the Respondent’s interest and ordered sale in default.
The Appellant argued that:-
- When imputing to the parties their shares of the property, the judge failed to take into account that following separation, the Appellant alone paid for all of the above costs in relation to the property;
- The judge at first instance wrongly categorised the Appellant’s case as one in which the size of the Respondent’s interest reduced post-separation when her position was that the presumption of joint tenancy in law and equity was displaced at the time of separation and that the parties’ intentions in respect of the size of their beneficial interests changed; and
- The whole of the increase in the property’s value attributable to the general property price increases since 2003 should be allocated to her.
The appeal court found that:-
- The judge at first trial was making an evaluative judgment when determining the parties’ shares by imputation, which required the Appellant to show an identifiable flaw such as a gap in logic, lack of consistency or failure to take account of material factors;
- The judge at the first trial did take into account the Appellant’s payment of the above costs in relation to the property;
- It was accepted that child maintenance can, in principle, be taken into account but the Appellant had not advanced that point at trial and the trial judge had not quantified outstanding maintenance; and
- Even if there had been mischaracterisation, this would not inevitably lead to an error in the evaluative judgment itself and no other specific error was identified.
How can we help
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning a TOLATA property dispute or a similar subject, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact usIf this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.