Up to 3.5 million couples cohabiting in the UK risk of losing their assets upon separation, legal experts have warned.
The caution comes amid new data revealing a substantial increase in properties held as tenants in common with unequal shares.
Law firm Nockolds recently analysed Land Registry records, uncovering a 17% rise in properties owned by tenants in common over the past six years, growing from 2.9 million to 3.4 million.
While ownership arrangements include siblings, extended families, friends, and co-investors, the majority are estimated to be unmarried couples who have contributed unequally to the property purchase but share ownership.
What are tenants in common?
When two or more people buy property together, they can hold the title as either joint tenants or tenants in common:
- Joint Tenants: Equal ownership shares, with rights of survivorship (ownership automatically passes to the other joint tenant on death).
- Tenants in Common: Allows for unequal ownership shares (e.g. 70%/30%) and separate inheritance rights.
Tenancy in common is often used to protect individual financial contributions. For example, if one partner pays a larger deposit or more mortgage payments, tenancy in common can reflect these unequal stakes, on paper.
However, Kiren Dhillon, senior associate at Nockolds, highlights a common misconception: ‘It is commonly assumed [that] cohabiting as tenants in common offers robust legal protection in the event of separation. This can be dangerously misleading.’
Rather, Dhillon explains, courts usually presume equal ownership unless clear evidence shows otherwise.
Such evidence may include financial records, written correspondence, or conduct demonstrating the parties’ intentions.
Importantly, Dhillon stresses that Land Registry entries do not determine actual ownership rights.
‘Courts will look at intention, contribution, and conduct – not just the legal title,’ she said.
Without formalised documentation, such as a declaration of trust specifying each party’s input and agreed share, individual contributions risk being disregarded, increasing the likelihood of unfair property division when relationships end.
What is a declaration of trust?
Declarations of trust are legal documents that detail ownership proportions, financial responsibilities (including deposits, mortgage payments, and ongoing costs), and arrangements for proceeds upon sale.
It should specify:
- Each party’s ownership share in the property
- Financial responsibilities (deposits, mortgage payments, costs)
- How proceeds will be divided if sold
- Dispute resolution and buyout options
- Inheritance arrangements and occupancy rights
This document offers legal certainty that the title deeds alone cannot guarantee. For unmarried couples, this document provides a binding framework that goes beyond the Land Registry title.
Without it, courts base decisions on inferred intentions, which can create unpredictability and conflict.
According to Nockolds, declarations of trust should be combined with cohabitation agreements for optimal protection.
While declarations secure financial stakes, cohabitation agreements govern day-to-day arrangements and what happens if a couple splits up.
According to Dhillon, ‘Together, they offer the clearest and most enforceable protection for beneficial ownership – combining legal certainty with practical clarity.’
What happens if tenants in common get married?
The complexity intensifies if unmarried co-owners proceed to marry.
Private agreements like declarations of trust can be overridden by family law under the Matrimonial Causes Act 1973, which grants courts discretion to redistribute assets based on fairness and individual needs rather than legal titles or prior agreements.
Dhillon warns, ‘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.’
To address this, couples are urged to incorporate these documents into pre-nuptial or post-nuptial agreements.
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