More couples than ever are choosing to live together without getting married. While this reflects modern relationships, the law has not kept pace.
In England and Wales, unmarried couples do not have the same legal protections as married couples when it comes to property. This can lead to serious financial consequences if the relationship ends.
Understanding how property ownership works is therefore essential.
Do unmarried couples have rights to property?
A common misconception is that “common law marriage” gives cohabiting couples automatic rights. It does not.
Even if you have lived together for many years, if you are not married, you do not automatically have a claim over your partner’s property.
Your rights will depend on how the property is owned and what you agreed (formally or informally).
How is property ownership decided?
There are two main ways ownership of the beneficial interest in property can be established:
A declaration of trust (the safest option)
A declaration of trust is a formal legal document that sets out:
who owns what share of a property; and
what should happen if the property is sold.
This is usually put in place when the property is purchased, but it can also be agreed later.
In most cases, the court will treat this document as final.
An informal or “implied” arrangement
If there is no declaration of trust, things become far less certain.
Ownership will usually follow the legal title:
If the property is in one person’s name, they are assumed to own it in full.
If it is in joint names, it is usually assumed to be owned equally.
However, this can be challenged. A person may still have a claim if they can show they contributed, for example:
towards the purchase price
to mortgage payments
to significant improvements
These cases often turn on evidence and intention, which can be difficult to prove and frequently lead to disputes.
What happens if you cannot agree?
If a separating couple cannot agree on ownership, the court can decide.
Under the Trusts of Land and Appointment of Trustees Act 1996 (often referred to as TOLATA), the court can:
decide who owns what share; and
in some cases, order a sale of the property
The outcome will depend heavily on the evidence available.
A recent case: informal agreements can matter
A recent High Court case, Nilsson v Cynberg, highlights how these disputes can arise.
The couple jointly owned a property with a written agreement confirming a 50/50 split. After separating, they reached a verbal agreement that one party would give up their share.
The remaining partner then paid all property costs on that understanding.
When the other party later became bankrupt, their creditors tried to claim against the property based on the original 50/50 agreement.
The court decided that the later verbal agreement – and the reliance placed on it – overrode the original document. As a result, the remaining partner was treated as the sole owner.
Key points to take away
Put it in writing: A declaration of trust is the clearest way to protect your position.
Update agreements if things change: Outdated documents can cause problems later.
Do not rely on assumptions: Living together does not create automatic rights.
Informal agreements are risky: Even if they are upheld, proving them can be difficult and costly.
Why this matters
Disputes between unmarried couples can be legally complex, time-consuming and expensive. More importantly, they often arise at already difficult moments.
Taking advice early – particularly when buying a property together – can prevent uncertainty and protect both parties.
To understand your position, review your current documents or set out a path to resolution, please speak to our Commercial Litigation team by clicking here.
