What happens to a joint mortgage when you split up and are not married?
The mortgage does not end when the relationship does. Both of your names remain on the mortgage agreement, and the lender’s position does not change simply because your circumstances have. Until something formally changes – whether that is a sale, a buyout, or a transfer of ownership – the mortgage continues under the same terms. The lender will not release either party simply because the relationship has ended.
What does change is the practical reality of who lives there, who pays what, and what each person is entitled to. For unmarried couples, those questions carry real legal weight.
Are both of us still liable for the mortgage after we separate?
Yes, both parties remain jointly and severally liable for mortgage repayments after separation. This means that the lender can pursue either of you for the full amount, regardless of who is living in the property.
Even if one person moves out and stops contributing, the other person – and the lender – can still hold you responsible.
Solicitor’s tip: Missing payments will affect both of your credit ratings, so we recommend having a payment plan in place to protect both of your futures.
What are the options for dealing with the property?
There is no single approach that works for everyone when figuring out how to split up a house you own together in the UK. The best route depends on your financial circumstances, whether you have children, and whether you and your ex-partner can reach an agreement.
These are the four most common options:
| Option | What it involves | Key considerations |
| Sell the property and split the equity | The property is sold and the proceeds are divided between you | Requires agreement on the split, TOLATA may apply if you disagree |
| One partner buys the other out and ownership is transferred | One person pays a lump sum to the other and takes on the mortgage alone and the property is transferred into the remaining party’s sole name | Requires a remortgage in one name, the current lender must approve, or the property will need to be re-mortgaged with a new lender and the current mortgage redeemed. Will involve a formal transfer and the process is known as a ‘transfer of equity; |
| The property is for a set period, usually for the benefit of the children | Legal ownership continues in the parties’ joint names, and they agree to sell later, such as when the youngest child reaches 18 | Both parties will remain liable under mortgage and usually it is agreed that on party occupies the property. Requires high level of goodwill, trust and co-operation between the parties |
| Keep the property and rent it out | Neither party sells, the property becomes a rental and rental income is shared | Requires ongoing agreement and cooperation, may have tax implications |
Reaching an agreement directly – perhaps with the help of a mediator – is usually quicker, cheaper, and less stressful than going to court.
If one partner wants to take over the joint mortgage alone and keep the property through a transfer of equity, bear in mind that the lender’s consent is required before the outgoing partner can come off the joint mortgage. The remaining partner will typically need to pass the lender’s affordability assessment on their sole income.
If the lender decides their income is insufficient to cover the debt independently, they may refuse to remove the ex-partner from the mortgage, even if both former partners are in full agreement. In that situation, a remortgage with a different lender, or a sale of the property, may be the only remaining options.
How is the equity split when an unmarried couple separates?
How equity is divided depends largely on how the property is owned. There are two main forms of joint ownership recognised under UK law:
- Joint tenants: Both of you own the whole property together. In most cases, this means an equal 50/50 split of any sale proceeds, regardless of who contributed more to the deposit or mortgage
- Tenants in common: Each of you owns a distinct share, which may be equal or unequal. If one person paid a larger deposit, that could be reflected in a larger share, provided it is documented
If you have a Declaration of Trust in place, that document will set out exactly how proceeds should be divided and is legally binding. A Declaration of Trust is typically a private deed. It is not itself registered at HM Land Registry, but it can be held by the Land Registry alongside your other property documents. There can a restriction placed on the title register by a solicitor, which would alert third parties to its existence.
Without one, the court will look at the intentions of the parties and the evidence of financial contribution and shared intention.
What if we cannot agree on how to split the house?
If you and your ex-partner cannot reach an agreement, either of you may be able to apply to the court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). A TOLATA claim allows the court to resolve disputes about the property, including whether it should be sold, what each person’s share is, and how to handle related financial issues that have built up since separation. Specifically, the court has the power to:
- Order the sale of the property
- Declare each party’s beneficial shares in it
- Determine how the trustees (i.e. the legal owners) of a property should exercise their powers
- Address related accounting issues between co-owners, such as credits for ongoing mortgage contributions or adjustments arising from one party’s sole occupation of the property
In reaching any of these decisions, the court will weigh the parties’ intentions, their financial contributions to the property, and the welfare of any children living there.
Is there anything TOLATA cannot do?
Unlike a divorce, where a judge has broad discretion to redistribute assets in a way that feels fair to both parties, TOLATA is more limited. The court can only declare what each person’s interest is, based on the evidence. It cannot adjust shares simply because the outcome seems unfair. That distinction matters, and it is one reason why getting legal advice early can make a real difference to how you approach any dispute. A family lawyer will be able to give you honest advice as to your chances of success, and how best to evidence your interest in the property.
The court can also consider what happened after separation. For example, if one person moved out but kept contributing to the mortgage, that may be relevant when the property is sold. In some cases, the fact that one partner stayed in the home alone may also affect the financial accounting between you. These issues are highly fact-specific, so legal advice is important.
Does it matter whose name is on the joint mortgage?
Yes and no. Being named on the mortgage makes you legally liable for repayments, but on its own, it doesn’t determine who owns what share of the property’s value.
Ownership is a separate question from mortgage liability. Someone may be on the mortgage but have a smaller beneficial interest in the property. Conversely, someone not named on the mortgage at all may still have a legitimate claim, depending on how they have contributed financially.
James Leach, Senior Associate at our family law office in Woking, says:
“Where there is uncertainty as to the proportions in which a property is co-owned, the potential for costly court proceedings with litigation risk for both parties is high.
“It is better to precisely set out the outset what each party’s interest is, such as through a declaration of trust, so future problems can be avoided.”
What are my property rights if I’m not on the mortgage?
Being absent from the legal title does not necessarily mean you have no claim. Under property law, two types of trust may be relevant.
A resulting trust, which can arise where you made a direct financial contribution to the purchase price. Or a constructive trust, which can arise where there was a common intention between you and your partner that you should have a share in the property, and you relied on that intention to your detriment. In a domestic situation such as when a couple purchase a property, a constructive trust is far more commonly asserted.
In practical terms, this means you may be able to assert a beneficial interest in the property if you contributed financially or if there was a clear shared understanding – expressed or implied – that you would have an interest in it.
The evidence might include:
- A direct contribution to the initial deposit
- Regular contributions to mortgage repayments
- Funding for major improvements, such as an extension, that added value to the property
- Written evidence (emails, texts, or documents) showing a shared intention to split the property’s value
Courts need evidence of a common intention, not simply a shared life. That means showing either direct financial contributions, or clear assurances that you would have a share in the property, which you then relied on to your detriment. Without evidence of one or the other, establishing a claim becomes much harder.
This is one of the areas where the legal reality of living together before marriage can come as a surprise after separation.
What about cohabitation agreements and Declarations of Trust?
A cohabitation agreement sets out how property, finances, and assets will be handled if the relationship ends. While not automatically legally binding in the same way as a court order, courts are increasingly willing to give weight to a properly drafted one.
A Declaration of Trust goes further. It is a legally binding private deed that sets out each person’s agreed share in the property – including how any unequal contributions, such as a larger deposit, should be reflected if the property is ever sold. If you have one in place, it removes much of the uncertainty that tends to arise when unmarried couples separate.
If you are separating and did not put any legal agreements in place, you are far from alone, but it does make the process more complex. Unmarried couples do not have the same legal protections as spouses or civil partners, regardless of how long they have lived together. The common law marriage myth is deeply embedded, and many people assume that years of shared life amount to legal protection when they do not.
When buying a house with a partner, making these decisions early can help avoid the kind of uncertainty that can occur.
Do I need a solicitor to help me?
This is a complex area of law, and outcomes depend heavily on evidence and legal structure. A family law solicitor can help you understand your rights, negotiate a fair outcome, and – where necessary – pursue or defend a TOLATA claim. Getting advice early, before positions become entrenched, is worthwhile.
Finding yourself in this situation is stressful, particularly when the law offers so little automatic protection to unmarried couples. Know that you do have options – and the sooner you understand your position, the better placed you are to reach a fair outcome.
Whether you are trying to agree on what to do with the property, considering a TOLATA claim, or simply want to know what you are entitled to, speaking to a family lawyer is the clearest first step.
Reach out to our team to speak with one of our specialists today.
