Mediation for property disputes between unmarried couples

Separating unmarried couples potentially need to agree arrangements for children and financial claims in relation to children under Schedule 1 of the Children Act 1989, as well as resolving any disputes between them in relation to property ownership. Family lawyers are all too aware that such property disputes carry higher risks at trial than matrimonial disputes where the judge has discretion, and the underlying principle is fairness, or in children disputes which are governed by the welfare of the child. Property disputes between unmarried couples instead fall under the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) and there is a complicated array of concepts and doctrines to consider which do not always result in decisions in case law that seem logical or fair.

Why mediate?

There are therefore many reasons to mediate such disputes:

1. Reduction in risk
2. Lower legal costs
3. Less delay
4. Freedom to make bespoke decision outside of the narrow scope of what a court can order
5. Flexibility to deal with all issues emanating from the relationship breakdown rather than just those that relate to a TOLATA claim

Mediation also fulfils the court’s requirement to attempt alternative dispute resolution. Failure to at least try it could lead to adverse legal cost consequences at trial.

How would the mediation work?

The process within family mediation would start by ascertaining the issues to be resolved and identifying the disclosure needed from each party to explore those issues, which is likely to include correspondence between them, conveyancing documents, a mechanism for valuing the property, and proof of payment for work undertaken at the property. Once all the information is exchanged, sessions can focus on options for settlement and proposals from each party.

Based on the complexity of the law, however, and the cost risk (these cases at trial are generally win or lose with the losing party having to pay all or a proportion of the winning party’s costs), integrated (lawyer inclusive) mediation is particularly effective and likely to be preferred by parties over the standard model above. Under this model, the couple can each benefit from the advice and support of their own team as well as the assistance of the mediator themselves. This can be especially important when the legal position is not always obvious and the emotional toll on the individual is high. The sessions could follow the same format as above but equally the lawyers may be able to assist in dealing with the disclosure process ahead of a half day or a full day’s mediation at which there is impetus, time and expertise to reach an agreement there and then rather than face ongoing time delays, further cost and potentially a stark outcome.

Such mediation sessions can be organised so that expert assistance is on tap with either an agreed advisor, for example a tax advisor, available to assist the parties or for each to have their own accountancy input. Advice from an IFA or mortgage advisor, so that all options can be explored and untenable options discounted, could be invaluable. Whereas this model is extremely similar to civil mediation, it falls more comfortably within a family mediator’s expertise based on experience of disputes arising from the breakdown of family relationships and also knowledge of financial claims for children which are often consolidated with TOLATA claims.

All the issues

It is never as simple as just resolving the property dispute itself. It would not be recommended to try to agree arrangements for children and a financial settlement all in one session but there are issues, such as agreeing the division of household contents, which do not fall within the judge’s jurisdiction in a TOLATA claim but remain high on a couple’s list of matters to resolve. Household contents can also be a highly divisive issue that can take weeks at disproportionate cost to try to resolve by correspondence. Integrated (lawyer inclusive) mediation provides an optimal forum for dealing with such ancillary contentions whilst there is the motivation from both parties to resolve all remaining issues between them and the support there from their team and the mediator to efficiently manage that process.