Constructive trusts in the family home — proving your share when unmarried

REVIEWED BY: Sean McNamara on 2026-08-31

The problem

When an unmarried couple splits and the family home is in one person's sole name, the other has no automatic right to stay or to a share. But they may have a beneficial interest under a constructive trust.

What a constructive trust requires

To establish a share, you must prove both:

1. A common intention that you both own the property (or own it in particular shares) — OR that a promise was made about your interest 2. A detriment you relied on — money you contributed, work you did, a child you cared for in reliance on the arrangement

The leading cases are Stack v Dowden and Jones v Kernott — courts now look at the whole course of dealing between the couple, not just paper title.

Evidence that builds your case

Direct contribution to the purchase price (deposit) or mortgage payments
Regular bill contributions (though these alone rarely establish an interest)
Renovation work done with the common intention of it being 'your home'
Shared finances — a joint account, pooled income, or one partner's income supporting a mortgage in the other's name
Emails/messages stating the intention ('it's our house', 'we're buying this together')

What to claim

If you can show a beneficial interest, you claim it via:

TOLATA (Trusts of Land and Appointment of Trustees Act 1996) — application to the civil court to declare the shares and, where needed, order a sale or transfer
This is a civil (not family-court) claim, though it often runs alongside family matters (see our trust-law-home guide)

Common pitfalls

A non-contributor living in someone's home has no automatic share
Contributions made a long time ago may be hard to evidence — gather records now
If there's no common intention, even big contributions may not establish a share
Relying on a partner's verbal promise without more is difficult to prove

Protecting yourself going forward

Declaration of trust — if you buy together (or one of you contributes), record the intended shares in writing at the time
Cohabitation agreement — settle what happens on separation
Keep every receipt, bank record, and any written statement about the property

Official links

TOLATA 1996: https://www.legislation.gov.uk/ukpga/1996/47
Property and money on separation: https://www.gov.uk/money-property-when-relationship-ends

This page is general information, not legal advice. Property-trust claims are fact-specific — get advice (see our finding-a-solicitor guide). YourFamilyCase.co.uk is an independent information directory and is not affiliated with HMCTS or gov.uk.

Content verified against the official HMCTS court directory, gov.uk forms and fees pages, and the professional body registers (SRA, FMC, Bar Council). Last reviewed September 2026.