Up to 3.5 million couples who are living together with unequal shares in the property they jointly bought are at risk of losing their assets if they separate, lawyers are warning.
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 million to 3.4 million, a rise of 17%, according to data obtained from the Land Registry by law firm Nockolds under the Freedom of Information Act.
While a small number will be siblings, extended family, friends or co-investors, most tenants in common are unmarried, cohabiting couples potentially with unequal shares in a property they own together.
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Owning a home as tenants in common is used to protect each party’s interest when buying property. But many cohabiting couples likely assume being tenants in common provides legal protections that do not exist, according to Nockolds.
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If the couple separate, the courts often presume equal shares and split the value of the asset accordingly – even if one partner contributed more to the deposit or mortgage than the other.
This is the case unless there's clear evidence the partners wanted the value of the property to be split in another way, Nockolds said – evidence such as financial records, communications, or conduct showing a shared understanding of unequal ownership.
Kiren Dhillon, senior associate at Nockolds, said: “It is commonly assumed cohabiting as tenants in common offers robust legal protection [that they will get their fair share] in the event of separation. This 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, said Dhillon. They will need a separate agreement – like a declaration of trust – to clarify and outline how much they each brought to the table and how much they should be entitled to if they split.
How to protect yourself when jointly buying a property
A declaration of trust is necessary to properly safeguard individual interests when jointly buying property, according to Nockolds.
This is a legally binding document which sets out the ownership proportions of a property, detailing 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.
Dhillon said: “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.
Dhillon said: “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.”
What happens when tenants in common get married?
Some couples currently living together may choose to get married – which also comes with a range of marriage tax perks. But a further complication arises when cohabiting couples who have been living as tenants in common tie the knot.
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.
Dhillon said: “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.”
