Property disputes between unmarried couples are not family law cases
There is a great deal about the law that applies to disputes between cohabiting couples that makes very little sense, not least a law that is not fit for purpose. I have blogged extensively about the need for cohabitation law reform, for example, here.
There is one particular aspect of these cases that makes no sense whatsoever. Despite being family disputes, if you end up in court arguing about ownership of a property, the application will be governed not by the Family Procedure Rules 2010 (FPR 2010), but by the Civil Procedure Rules 1998 (CPR 1998).
There is a massive difference between these different sets of rules. FPR 2010 is designed specifically for family cases that take place in the Family Court, whereas CPR 1998 is designed for a wide range of civil litigation cases in the County Court and High Court. A claim for an order for sale of a property and a declaration of beneficial interest under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) has to take place in the County Court or High Court, as it classed as civil law, even if it is a property dispute between a couple of former cohabitants. The case will therefore be subject to pretty much the same procedure as a personal injury claim, a libel action or a boundary dispute.
Family law differs from civil law as it concentrates on the future. Civil litigation concentrates on the past; someone has done something wrong, such as breaching a contract, causing injury or defaming someone. Family law, on the other hand is all about sorting out the parties’ and their children’s futures.
CPR 1998 is a tough place to find yourself. There is the ever present risk of a costs order being made, even for something like being a teeny bit late filing a document at court or taking a step in the proceedings. Civil litigators’ obsession with costs and seeking relief from sanctions seems weird to family lawyers, who are used to a regime where (most of the time) being a bit late is often not a problem so long as you’re not very late, and where costs orders are relatively rare. This more forgiving environment which tolerates (a better way of putting it might be, ignores) a bit of lateness is, in my submission, much more appropriate when dealing with private individuals in the midst of a family dispute and te turmoil of relationship breakdown. I suspect that civil litigators might disagree with me about that, but they are used to a world of brutal consequences.
There is also the oddity of the situation where a TOLATA claim is coupled with an application for financial provision for children under the Children Act 1989, Schedule 1. Where this happens, the court’s approach is that the two separate applications should be dealt with at the same time, even though a Schedule 1 application is most definitely a family law application that can only be commenced in the Family Court. The judge then has to be both a county court judge and a family court judge at the same time, and decide what procedure it will use.
The government has promised reform of the law in this area, and in my view, it should adopt the so-called de facto model for reform so that unmarried couples gain the same rights as married couples if they have cohabited for a minimum period and/or had children together, rather than a difference model where they gain better, but not the same, rights. (See my blog here for an explanation as to why this apparently radical idea is entirely sensible).
Whatever form of change that the government decides to make, the new law should make it clear that cohabitation disputes are family law, must take place in the Family Court (in cases where non-court dispute resolution, such as mediation, collaborative law or arbitration, is not appropriate or has failed) and shall be governed by the FPR 2008.
However, there are still likely to be cases where the former cohabitants may have to use the old law. If they don’t qualify under the new law because they have not lived together for long enough, or not had children together, then they may be stuck with TOLATA 1996 and CPR 1998. Any change in the law needs to also make it clear that these disputes must also be governed by FPR 2008 and take place in the Family Court, even if the new law doesn’t apply to them.
24 May 2025
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