Call us: Mon - Fri 8:30am - 7pm, Sat - Sun 9am - 5pm
Call local rate 0330 056 3171
Mon - Fri 8:30am - 7pm | Sat - Sun 9am - 5pm
Call local rate 0330 056 3171
Mon - Fri 8:30am - 7pm | Sat - Sun 9am - 5pm

The law on cohabitation and property: who owns the house? By Paul Read

Cohabitation is a complex area of family law and one that becomes more confused and murky by the week. Take property ownership. Very often cohabiting couples do not equally hold property, with one party having complete legal ownership. In other instances they do have shared legal ownership, but the proportion in which the property is held has not been made clear.

In short, the law for cohabiting couples in dispute over property is something of a mess and in urgent need of clarification. But as it stands, and to gain a full picture of the situation, there are several issues that need to be explored.

So last week, as I prepared for a hectic day in London with Mrs Stowe, my phone reminded me that Professor Rebecca Bailey-Harris was about to deliver an update on cohabitation disputes in the Stowe Family Law boardroom, I was there in a shot. Professor Bailey-Harris has a gift for explaining complex legal issues with clarity, and I knew she would describe events in practical terms that we could immediately draw upon for our clients’ benefit.

Cohabitation and marriage: the difference

Cohabitation usually relates to an unmarried couple, either straight or gay, living together as partners without entering into a marriage or civil partnership.

English and Welsh law draws a sharp distinction between those in a marriage or civil partnership, and those not in one. But what does this distinction mean?

Where a couple have been married or entered into a civil partnership, the breakdown of the relationship and the distribution of any assets is dealt with by the Matrimonial Causes Act 1973 and The Civil Partnership Act 2004 respectively. These two pieces of legislation incorporate very similar provisions that give the court discretion to reach an outcome which is fair for both parties.

However, where a couple have not been married or entered into a civil partnership and the relationship breaks down, the court is only interested in trust law. And in these instances the results can be far from fair.

Not an issue of fairness

This unfairness has not gone unnoticed, and there are a number of judges who have questioned the law as it stands. In James v Thomas [2007] EWCA Civ 1212 judge Sir John Chadwick said that property disputes resulting from cohabitation must be:

“Determined by applying principles of law and equity, which (however inadequate to meet the circumstances in which parties live together in the 21st Century) must now be taken to be well established.”

This point was reinforced in Thompson v Humphrey [2009] EWHC 3576 (ch) where Mr Justice Warren said:

“Cases of this nature are to do with the application of some quite strict legal principles, and not with imposing some standard of fairness.”

So if these disputes are not considered on the basis of fairness, what are the legal principles that decide them?

Beneficial ownership v legal ownership

Where property is in the name of a single party, Baroness Hale said in the central case of Stack v Dowden [2007] UKHL 17 that:

“The onus is on the person seeking to show that the beneficial ownership is different from the legal ownership. So in non-owner cases, it is upon the non-owner to show that he had any interest at all.”

Therefore the person who has no legal ownership of the property needs to show they have a beneficial interest. In legal terms this means:

1)      That there was a common intention to share beneficial ownership (including evidence to support this claim) and;

2)      If they can show this, what are the parties’ respective shares?

This has been described as the dual hurdle that a claimant must clear in order to prove a case.

So how do you show that you do have a beneficial interest? Well, guidance is given in the case of Lloyds Bank Plc v Rosset [1991], where two methods of beneficial ownership are described:

1)      By express discussions evidencing an agreement or understanding between the parties.

2)      Alternatively, by drawing inferences from the conduct of the parties.

Any express discussions as outlined above must be presented in court with detail, however long ago they took place or poorly remembered they might be.

Inferences are much more difficult to prove in court. The words of the Law Commission in its Sharing Homes report were adopted in the case of Abbott v Abbott [2008]. The report simply said that the court’s task is to ascertain the parties’ shared intentions – actual, inferred or imputed – with respect to the property “in the light of their whole course of conduct in relation to it”. But as Professor Bailey-Harris pointed out, recent cases do not make it any clearer as to what conduct will be considered as evidence of shared ownership.

Shared legal ownership

Shared legal ownership is when both parties have their names on the deeds but there is nothing expressly setting out what proportion of the property is owned by either party. In this instance the courts presume that beneficial ownership follows legal ownership. If the deeds make no reference to beneficial interests of the parties, it is necessary to look behind the legal interests to establish the beneficial interests.

This sounds complicated, and indeed it is. We were told by Professor Bailey-Harris that the vast majority of these cases settle before trial because the law is so inconclusive and the losing party runs the risk of liability for the winning party’s costs. This is normally not a risk encountered in family litigation because there is a presumption of no order for costs, except where misconduct can be proved.

So how do you show what beneficial interest you have? In other words, how do you show what proportion of the property you actually own?

Proving beneficial interest

Judicial opinion in this area is pretty difficult to understand, but a recent case (Kernott v Jones [2010] EWCA Civ 58) does help to shed some light on the issue.

In this case a cohabiting couple had bought a family home in joint names for £30,000. The woman supplied a deposit of £6,000 and the rest was funded by an interest only mortgage. A year later the man built an extension to the property with the help of a £2,000 loan, paid for largely by the man; the extension enhanced the property’s value by about £14,000. The couple had two children together and during the relationship the household bills, including the main mortgage payments, were shared.

After the couple had lived for more than eight years in the property, the relationship broke down and the man moved out. All the payments were then met by the woman, who maintained the property and supported the children with little or no contribution from the man. The parties agreed to cash in a life insurance policy, dividing the proceeds, in part to enable the man to buy a property in his sole name.

After both properties had increased in value the man served a notice of severance for the property held in joint names. The equity in the shared property was around £218,000 and the equity in the man’s sole property was about £167,000.

The woman responded by bringing a claim for both properties under the Trusts of Land and Appointment of Trustees Act 1996. She claimed that she owned the entire beneficial interest in the shared property, or that if her former partner retained an interest in that property she in turn had an interest in his new home (the second part of which she later dropped).

In the initial ruling the woman was said to be entitled to 90 per cent of the value of the property held in joint names, on the basis that this was fair and just. The man appealed to the High Court, saying that it was not legitimate for the court to take account of what was fair and just in this case.

Sitting as a Deputy High Court Judge, Nicholas Strauss QC upheld the first decision and relied heavily on Stack v Dowden in reaching his decision:

“[Where] there is no express agreement as to the amounts of the parties’ interests, the court will quantify them by reference to the whole course of dealings between the parties, taking account of all conduct which throws light on the question of what shares were intended. The court has to assess in the light of their conduct what the parties must be taken to have intended and had not to impose what the court would itself consider fair and just.”

The man again appealed this decision. But in dismissing it once more The Court of Appeal took a very different view and criticised Baroness Hale in Stack v Dowden. Lord Justice Rimer said:

“As for Baroness Hale’s statement (in Stack v Dowden) that the court must or can also look for the parties’ imputed intention, I do not, with the greatest respect, understand what she meant.”

So the outcome in this case changed three times during litigation. For obvious reasons this is far from satisfactory. Prof Bailey-Harris suggested that if the case is appealed again and proceeds to the Supreme Court, it would be a good opportunity to provide much needed guidance. Not least on how strong the presumption of equal beneficial ownership is in cases of properties registered in joint names, and what the true nature of the parties’ intentions must be in the eyes of the court.

How to protect yourself

The case law does make for alarming reading and is filled with any number of cautionary tales for cohabiting couples. But if you take the proper preventative steps and protect your interests you are never likely to face the same set of problems.

If you purchase a property with someone else, make absolutely sure your respective beneficial interests are recorded on the deeds. In addition, it is also a good idea to enter into a separate deed of trust with the co-owner.

If you are not registered as a legal owner of a property but feel that you should have a beneficial interest, try to address the situation before it is too late. Ask the legal owner to enter you as a co-legal owner with an expressed beneficial interest. If this is not possible for whatever reason, consider a cohabitation agreement which states what your beneficial interest in the property should be.

Until new legislation is introduced by Parliament, cohabiting couples are not well protected by the law unless they themselves make a declaration of trust. Remember, there is no such thing as a common law marriage!

Perhaps it is time for new legislation equivalent to the French Pacte civil de solidarité. This permits any two people to enter into an agreement that subsequently allows for the distribution of their assets to be carried out in line with set principles that are based upon fairness.

Cohabitation law has now become so confusing and inexact that legislation seems the only way to provide clarity for the millions of the couples who are unmarried.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

Contact us

As the UK's largest family law firm we understand that every case is personal.


  1. dawn says:

    im trying to find out if i owned my house before the marriage is it martial property thank you

    • Marilyn Stowe says:

      Dear Dawn
      All property in a marriage is available for sharing. However, the court will generally not take into account pre acquired property if needs of both parties can be met without it. That may be different for a marital home, but it will depend on the facts. The length of the marriage, the ages of both of you, your respective needs, your incomes and other capital assets – they are all relevant factors. Its daunting trying to understand all this, but the court does work it all out fairly on an individual basis.
      If you want to send me some more info along the above lines, I may be able to suggest a fair outcome.
      Best wishes

  2. NI confused says:

    dear Marilyn,

    I read your piece with interest. I own my house that my partner and I live in in Northern Ireland. I’m trying to find out do I need to put anything in place to protect my house if the relationship splits up?

    Would I need to go to a solicitor and get some sort of agreement sorted out that says he would not make any claim on my house?

    Many thanks for your help.
    NI Confused

  3. Wendy says:

    Hello, I own my house outright. My partner may be moving in with me soon. I would like to find out if he would have any legal rights over the house should we split up. Please can you advise me about this. We have agreed to pay half each on all bills. Thank you.

  4. Maggie says:

    I have found the information useful. I was obviously looking with the hope that there has been a change in the law. I have been cohabiting for nine years having sold my family home and put a big deposit to our current home. My ex did not contribute anything. I was clueless in regards to the law in terms of where I stood should the relationship break down. My ex wants half of my deposit, he has another home which he solely owns. He objected to my name being included in order to address our finances before the relationship broke down and now he wants to take me to court to force the sake of the house and he expects me to pay his costs of taking me to court.

    I would not advice anyone to cohabit without thinking very carefully about their financial interests.

  5. Laura Ashton says:

    All comments useful. I currently co-habit with my partner. We have lived together for a period of 20 odd years. Our current property is fully in the name of my partner, however I can prove substantial contribution to our life together during this period. Our relationship has broken down. Where do I stand in terms of recompense on the sale of our property ?

  6. SY says:

    Hello, my soon to be husband owns a property with his ex wife, she is however bankrupt so her half is actually controlled by a trustee.

    She doesn’t want me living here and has stated on several occasions it’s her property and she can have me removed.

    What steps can my partner and I take to ensure this won’t happen.

    Btw, she has made no financial contribution to the house for five years

  7. candy says:

    This is very useful

  8. Robert taylor says:

    I lived for ten years with my ex partner who owned her own house . I improved the property installing new kitchen. Bathroom and general maintenance to upkeep the property . I also paid half of all the bills and a payment towards the mortgage . The relationship broke down and I left with nothing . The house increased in value considerablly over that period . My ex refused any compensation but insisted I paid her back a loan that she gave . Which I have been doing every month . It’s been very one sided and unfair. Is there anything I can do legally?

  9. Trudy says:

    I have 2 daughters. One lives abroad the other lives here. My husband is deceased. If I were to allow my daughter who lives here to move in to look after me when I’m ill does she have any rights to either stay in the house or make a bigger claim to my assets and/or to my home after I’ve passed away even although my will reads that my assets and properties should be split evenly between my two daughters? I live in Scotland.

  10. Denise Madgwick says:

    I have read your blog on this point.
    I am a McKenzie friend and in study for a paralegal.
    I have a case which is around this type of situation I would be honored if you could contact me regarding some advice,
    our website is

    thank you kindly,


  11. Penny says:

    My sister’s partner left her 9 years ago.He has never paid anything toward the mortgage. Their youngest of 2 children leaves full time education in June and my sisters ex partner has requested his half of the equity at the properties current value. He has paid child maintenance via CSA for a short period but was then made redundant and not paid her anything for their upbringing since.
    Can he legally do this and if so is there a counter claim my sister can make?

    • Cameron Paterson says:

      Hello – we may be able to get you some advice. If you could us let know roughly what part of the country you live in, we’ll ask a solicitor from the nearest office to drop you a line

  12. H says:

    I have been divorced for 12 years. I have two children, one is 20 and at university, the other 14 is living with me. I partly own the house I live in with my ex husband. My ex-husband wants me to sell the house and has been harassing me over this for a long while. Recently he has been abusive and threatening and I have reported him to the Police. He has also been entering the property whilst I have not been there. I would like my new partner to move in with me and would like to know legally what I can do and how this would impact on my new partner.

    • Cameron Paterson says:

      If you can tell us roughly what part of the country you live in, we’ll ask a solicitor at our nearest office to drop you a line with some feedback

  13. P says:


    I had some questions about the process taken in joint legal ownership cases. Say, hypothetically of course, that I contributed two thirds of the initial purchase price of a house and paid the last third by way of mortgage with my partner (not spouse or civil partner), say that my partner and I have split and I wish to know of any interests I may have pertaining this piece of property. There has not been an express declaration of beneficial interests so, according to Baroness Hale ‘Equity follows the law’ and we are considered joint tenants both in law and equity, the onus is on me to rebut this presumption as I wish to show that the beneficial interests are divided other than equally. Do the courts at this point rely on a common intention constructive trust and look at conduct of the parties mentioned at [69] of Stack v Dowden? Any feedback would be much appreciated.



    • Stephanie Battershill says:

      I’d very much like the answer to this too – did you manage to find out how it works?

  14. DONNA says:

    I have a property dispute with my sister, I am confused if this comes under family law or civil litigation, can you advise please?

    • Sally Shakespeare says:

      Hi Donna. Thank you for your question. I have passed this on to our Client Care team who will be in touch. Best wishes

Leave a comment

Help & advice categories


Newsletter Sign Up

Sign up for advice on divorce and relationships from our lawyers, divorce coaches and relationship experts.

What type of information are you looking for?

Privacy Policy