My relationship with my partner has broken down – how do I protect my children’s wellbeing?

04 November 2020

When unmarried cohabitees split up, how are the interests of the children to be dealt with?

This was discussed in the recent case of V and W (TOLATA – schedule 1 – whether to defer sale of jointly owned property) [2020] EWFC 25.


The couple had been in an unmarried relationship from 1995 until 2017. They were joint owners of a four-bedroom house in Oxfordshire, and had two children aged 19 and 14. The couple were still living together in the property. They did not eat together and the mother kept mostly to her bedroom.

The mother had applied for a declaration under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order for the property to be sold on the open market. The father had made an application under Schedule 1 of the Children’s Act 1989 for the mother’s share of the property to be held on trust for the benefit of the parties’ son (the fourteen-year-old), until such time as he finished full-time education.

In short, the mother wanted the property to be sold as soon as possible, but the father wanted it to be delayed for another seven or eight years.

The difference between TOLATA applications and Schedule 1 applications

TOLATA applications and Schedule 1 applications place emphasis on different factors.

With a Schedule 1 application, the court’s main considerations are:

  • overall needs of the child and the parties
  • the parties’ obligations
  • the child and the parties’ ability to meet those needs.

With a TOLATA application, this is not the case. While the relevant legislation (section 15 of TOLATA) takes account of the welfare of any children occupying the property, it does not prioritise this over other relevant factors. These other relevant factors include the intentions of the persons who created the trust; the purposes for which the trust property is held; and the interests of any secured creditors such as mortgage lenders.

Judge’s decision

Having considered both applications and all of the circumstances, the judge in V and W decided that the property would be sold on the open market. The judge’s reasons included the following:

  • The property has been purchased as a family home. So, effectively, its purpose had ended upon the breakdown of the relationship.
  • The judge was concerned that the son’s emotional needs were not being met by the current situation. He noted that the atmosphere in the property was tense and resentful.
  • The judge was not persuaded that the son’s physical needs could only be met by his continuing to live in the property.
  • Although there was sufficient equity in the property to discharge the mortgage, this might change in future. The father was not able to meet the mortgage in full without assistance from his parents. He had no evidence that he would be able, in future, to invest in the property so as to keep it in good repair. 


When couples split up, it can be an extremely difficult time both for themselves and for their children. If an unmarried couple cannot agree on what should happen to the family home, one or other of them can make an application under TOLATA and/ or Schedule 1 of the Children Act 1989.

The welfare of minor children is an important consideration, but not a paramount consideration, under TOLATA. Put broadly, the Court will aim to achieve justice between the parties in accordance with sections 14 and 15 of TOLATA. 

If the facts in V and W had been slightly different – for instance, in the son had been disabled and the property had been specially adapted for him, or if the father had been able to meet the mortgage in full – the judge might have delayed the sale of the property. The Court has a broad discretion in cases such as these.

If you require any further information on applications under TOLATA or property disputes of this nature more generally, please contact Stephanie Butler on 01473 406312 or [email protected]

If you require any information about applications under Schedule 1 of the Children Act 1989 or issues concerning children more generally, please contact Emma Brunning in our Family Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2020.



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