Up to 3.5 million couples who are cohabiting with unequal shares in the property they bought together are at risk of losing their assets in the event of separation, according to Nockolds, the leading law firm.
According to data obtained by Nockolds under the Freedom of Information Act, the number of UK properties owned by tenants in common with unequal shares jumped by 500,000 over the last six years, from 2.9 to 3.4 million, a rise of 17 percent. Nockolds says that most tenants in common are unmarried, cohabiting couples with unequal shares in a property , although a small number will also be siblings, extended family members, friends or co-investors.
Nockolds says that while owning a property as tenants in common is used to protect each party’s beneficial interest when buying property, many cohabiting couples likely assume being tenants in common provides legal protections that do not exist. In the event of separation, if one partner contributed more to the deposit or mortgage than the other, courts often presume equal shares.
Nockolds explains that even if contributions were unequal (e.g. one party paid more of the deposit), courts may still presume equal shares unless there’s clear evidence that the parties intended otherwise. Evidence could include financial records, communications, or conduct showing a shared understanding of unequal ownership.
According to Nockolds, a declaration of trust is necessary to properly safeguard individual interests when jointly buying property. This is a legally binding document that clearly sets out the ownership proportions of a property, reflecting each party’s financial contributions to the deposit, mortgage, and associated costs. It should specify how proceeds will be divided upon sale, outline responsibilities for ongoing expenses, and include provisions for resolving disputes or buying out a share. Crucially, it can also address inheritance intentions and occupancy rights, offering legal clarity and protection for cohabiting owners – especially where contributions are unequal or third-party funding is involved.
Kiren Dhillon, Senior Associate at Nockolds, comments: “It is commonly assumed that cohabiting as tenants in common offers robust legal protection in the event of separation. This assumption can be dangerously misleading. Courts will look at intention, contribution, and conduct – not just the legal title.”
“When cohabitees have made unequal contributions to a property it is irrelevant what the Land Registry records say about the ownership of a property, it needs to be backed up by a separate agreement to clarify and outline the beneficial interest.”
She adds: “Title deeds show who owns the property. A declaration of trust shows how it is owned – and that distinction becomes critical when relationships break down. If one party contributes more to the purchase or upkeep, a declaration is the only reliable way to ensure that contribution is legally recognised.”
According to Nockolds, a cohabitation agreement in conjunction with a declaration of trust is often the most robust way to protect parties’ interests. A cohabitation agreement is a broader contract between cohabiting partners that governs how they live together and what happens if they split up.
Kiren Dhillon says: “A declaration of trust secures each party’s financial stake in the property, while a cohabitation agreement sets out how that ownership is managed day-to-day and what happens if the relationship ends. Together, they offer the clearest and most enforceable protection for beneficial ownership – combining legal certainty with practical clarity.”
Nockolds points out that a further complication arises when cohabiting couples who have been living as tenants in common get married. This is because once a couple marries, the family courts gain broad powers under the Matrimonial Causes Act 1973 to redistribute assets – including the family home – based on fairness, needs, and circumstances irrespective of Land Registry records or what is written in a declaration of trust.
Kiren Dhillon says: “It is often wrongly assumed that declarations of trust carry over once couples get married. They are overridden by matrimonial law, which means they can be worthless in a divorce court.”
“Marriage introduces a new legal framework. What was once a private agreement between cohabitees becomes subject to judicial discretion in the event of divorce. Therefore, if you are getting married, it is sensible to convert or incorporate a declaration of trust into a pre-nuptial or post-nuptial agreement.
Up to 3.5 million cohabiting couples risk losing their share of the home
