26 May 2026 · 5 min read
The uncomfortable truth
If you are married and you separate, the court has wide powers to divide your assets fairly under the Matrimonial Causes Act 1973. The family home is part of the matrimonial pot regardless of whose name is on the title.
If you are not married, none of that applies. There is no "common-law marriage" in England and Wales, no matter how long you have lived together. The law treats you as two unrelated individuals who happen to co-own an asset. Your rights depend almost entirely on property law, not family law.
Joint tenants vs. tenants in common
When you bought the property, your solicitor asked how you wanted to hold it. The two options:
- Joint tenants. You each own the whole property together. If one of you dies, the other automatically inherits the whole thing (right of survivorship). If you split up, the starting assumption is 50/50 regardless of contributions.
- Tenants in common. You each own a defined share (which does not have to be equal). If one of you dies, your share goes to whoever you named in your will, not automatically to your partner. This is the usual arrangement when you have a Declaration of Trust.
If you are tenants in common with a Declaration of Trust, your respective shares are governed by the trust deed. The split is based on what the deed says, backed up by the evidence of who actually contributed what.
What happens without a Declaration of Trust
If you are joint tenants with no Declaration of Trust and you separate, the law presumes you own the property equally. If one of you put in a much larger deposit or has been paying the mortgage alone, you would need to go to court to argue for a larger share. This means a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), which is expensive, slow, and uncertain.
A TOLATA claim typically costs £10,000 to £30,000 per side in legal fees, takes months or years, and the outcome depends heavily on what evidence you can produce. Without a contemporaneous record of contributions, you are relying on bank statements, memory, and the court's interpretation of your intentions at the time.
What happens with a Declaration of Trust
A Declaration of Trust sets out the rules in advance. If you separate, your solicitors refer to the trust deed, apply the agreed formula to the actual contributions, and calculate each person's share. The process is faster, cheaper, and far less adversarial.
The trust deed is only as good as the evidence behind it. If the deed says ownership follows contributions but nobody tracked the contributions, you are back to arguing about who paid what and when. A complete, timestamped, tamper-resistant contribution record is what turns a Declaration of Trust from a set of good intentions into an enforceable agreement.
Practical steps to protect yourself
- Get a Declaration of Trust before or at the time of purchase. It is dramatically cheaper than sorting things out later.
- Hold as tenants in common so your shares can differ and your will controls what happens to your share.
- Track contributions from day one. Every deposit, mortgage payment, overpayment, and improvement, logged at the time with the date, amount, and who paid.
- Review the split periodically. Once a year, look at the numbers together. If something is wrong, flag it while the memory is fresh, not years later.
- Keep the record exportable. If your solicitor ever needs it, you want a single PDF you can hand over, not a shoebox of bank statements and scribbled notes.
The cost of not doing this
A Declaration of Trust costs a few hundred pounds. A contribution tracker like TrustBadger costs £19.99 a year. A TOLATA court case costs tens of thousands and takes your time, your energy, and whatever remained of the relationship.
The best time to set this up was when you bought the property. The second best time is now.
TrustBadger keeps a timestamped, solicitor-ready record of every contribution you and your co-owner make to your shared home. 14-day free trial, no card needed. Start your trial.
