Cohabitation and the family home — trust law basics

REVIEWED BY: Sean McNamara on 2026-08-28

Who this is for

Unmarried couples (and others) disputing who owns or is entitled to a share of a home. In England and Wales cohabitants cannot use the family court's divorce-style financial remedy regime — property disputes go to the civil courts under property and trust law, most commonly under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). This page is general information only, not legal advice — see our notice at the foot of the page.

Sole-name homes: how a non-owner can claim a share

If only one person's name is on the legal title (the deed), the starting point is that **the legal owner owns both the legal and the beneficial interest — the other partner has nothing automatically. To claim a share you must show the legal owner holds some or all of the property on trust** for you. There are two main routes:

Resulting trust

A financial contribution to the purchase price (deposit, part of the price) at the time of acquisition can give you a beneficial share in proportion to that contribution. Largely historical for family homes — since Stack v Dowden [2007] UKHL 17 the courts prefer the common intention analysis where a couple bought a home as a home.

Constructive trust (common intention)

Developed in Stack v Dowden, Jones v Kernott [2011] UKSC 53 and earlier cases. You must prove:

1. A common intention that you would have a beneficial share; and 2. Detrimental reliance on that intention — conduct the court can treat as evidence of it.

In sole-name cases the burden is on the non-owner, and after Jones v Kernott intention is assessed at the date of acquisition but can be inferred or imputed as at the date of separation/trial.

Evidence of beneficial interest

Courts look for direct contributions (deposit, mortgage payments, substantial renovations funded by you) and indirect evidence — household budgeting arrangements, statements and messages about "our house", leaving a secure tenancy or selling a property, savings given up, paying child-related expenses so the other could pay the mortgage. Mere cohabitation, housework or "wifely duties" are not enough (Burns v Burns [1984]). Stack v Dowden stressed that in sole-name cases exceptional evidence is normally needed to displace the presumption that the legal owner owns everything.

Joint-name homes: legal title vs beneficial shares

The legal title can be held only as joint tenants (survivorship: on one death the whole passes to the other automatically, regardless of a will).
The beneficial interests can be held either as joint tenants (equally, 50/50) or as tenants in common in specified or quantified shares.
A declaration of trust (or the transfer deed's TR1 box) usually records this. If nothing is said, the presumption is equal shares — Stack v Dowden held that in joint-name cases the starting point (and usually the end point) is 50/50, displaced only by exceptional evidence. Jones v Kernott allows shares to be quantified by imputation where intention changed later.

Severing the joint tenancy

A beneficial joint tenancy can be severed into a tenancy in common (fixed shares) by:

written notice under s.36 Law of Property Act 1925;
mutual agreement or course of dealing; or
conduct — including, in family disputes, the kind of actions a court would treat as severance.

On severance, each owns a defined share that forms part of your estate on death. Severance should be confirmed with the Land Registry (Form SEV / restriction HM Land Registry form RX1). If the home is already held as tenants in common there is a Form A restriction on the title — check first via HM Land Registry's Search of the index map or the title register.

TOLATA claims

Where no agreement can be reached, either party can apply to the county court under s.14 Trusts of Land and Appointment of Trustees Act 1996 for:

a declaration of the parties' beneficial shares, and
an order for sale of the property.

The court applies s.15 TOLATA factors: the intentions of the persons entitled, the purposes for which the land is held, the welfare of any minor occupying the home, and the interests of any secured creditor. Costs generally follow the event (the loser can be ordered to pay), unlike family proceedings. Applications are issued in the county court ( Property, Trusts and Wills list) — see GOV.UK's guidance on making a court claim for money or property. Related claims can also be brought under s.17 Married Women's Property Act 1882 and, for occupation, under the Family Law Act 1996 (occupation orders — see our occupation order guide).

Practical evidence

Whatever your claim, gather contemporaneous documents:

Bank statements showing deposit payments, mortgage direct debits, transfers between accounts;
Joint accounts and household budgeting documents showing who paid what;
Declarations of trust, TR1 forms, tenancy agreements, wills;
Texts, emails and letters discussing ownership, shares, or "our house";
Renovation invoices and receipts for works you funded;
Evidence of what you gave up (a tenancy surrendered, a property sold, savings spent);
A timeline of the relationship: when you moved in, separated, and any agreements made.

Write a witness statement tying each document to the common intention relied on. Keep original documents — do not alter them.

Time limits — check before you delay

There is no single fixed limitation period for a TOLATA claim, but the Limitation Act 1980 applies: claims to recover land (s.15) are generally barred after 12 years' adverse possession by the legal owner, and simple contractual claims after 6 years (s.5). Laches (delay amounting to acquiescence) can also defeat an equitable claim.
Claims against a deceased's estate under the Inheritance (Provision for Family and Dependants) Act 1975 must be issued within 6 months of the grant of probate/letters of administration.
If the home is being sold or repossessed, apply to the court urgently — an application for a charging order, an injunction to restrain sale, or Home Rights registration under the Family Law Act 1996 (a non-occupying partner who is not on the deed can register home rights with HM Land Registry) may be needed quickly.
Get advice early: delay can be used against you in costs and in the court's assessment of intention.

Where to get help

GOV.UK — cohabitation and property: https://www.gov.uk/browse/births-deaths-marriages
GOV.UK — make a court claim: https://www.gov.uk/make-court-claim-for-money
GOV.UK — HM Land Registry (title checks, Form SEV): https://www.gov.uk/government/organisations/land-registry
Legislation: TOLATA 1996 — https://www.legislation.gov.uk/ukpga/1996/47 ; Limitation Act 1980 — https://www.legislation.gov.uk/ukpga/1980/58
Resolution and Citizens Advice for finding a property/trusts solicitor: https://www.resolution.org.uk/ ; https://www.citizensadvice.org.uk/
See also our guides: cohabitation-rights-guide, occupation-order-guide, prenup-agreements-guide

Not legal advice. This guide is general information only and does not constitute legal advice; the law changes and outcomes depend on individual facts. We are an independent, not-for-profit information service with no connection to any law firm, court, or government body, and we receive no commission from any solicitor or referral service. Always take advice from a qualified solicitor or an authorised adviser before starting or responding to any claim.

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. legislation.gov.uk (TOLATA 1996, Limitation Act 1980, LPA 1925 s.36) and case law (Stack v Dowden [2007] UKHL 17; Jones v Kernott [2011] UKSC 53; Burns v Burns [1984] Ch 317); links verified against official sources on 2026-08-28.