For many unmarried couples, this comes as a surprise. The good news is that with the right legal documents in place before you exchange contracts, you can protect yourself – and your partner – clearly and fairly.
Joint tenants vs tenants in common: Which should you choose when buying a house together, but you’re not married?
Joint tenants own the property equally as a single legal unit, with no separate defined shares. Tenants in common each own a distinct share, which can be equal or unequal. For most couples buying a house together when they’re not married, tenants in common tends to offer greater flexibility and protection.
This is one of the most important decisions you’ll make at the point of purchase, and one that many couples don’t fully understand until later. It’s worth taking a moment to understand the difference.
Joint tenants
As joint tenants, you and your partner own the whole property together. Neither of you holds a separate, quantifiable share.
The most significant legal consequence is the Rule of Survivorship. If one of you dies, the other automatically inherits the entire property – regardless of what your Will says. The Rule of Survivorship overrides your Will entirely, meaning your share cannot be passed to a child, a parent, or anyone else through your estate. Your respective financial contributions to acquiring the property are immaterial as the surviving owner shall receive 100% of the property. For couples who want simplicity and mutual automatic inheritance, joint tenancy can work well, but it does remove individual control.
Tenants in common
As tenants in common, you each hold a defined share of the property. Those shares can be equal (50/50) or reflect your actual contributions, for example, 70/30 if one partner paid a larger deposit.
Crucially, your share does not pass automatically to your partner when you die. Instead, it is governed by your Will. If you die without a valid Will, the Rules of Intestacy apply. Under intestacy law, an unmarried partner has no automatic right to inherit. Your share could pass to a parent or sibling rather than the person you live with. If you have children, it will pass to them. If you choose tenants in common, making a Will isn’t optional, it’s essential if you want control over who receives your share in the property upon your death. If you would still like your partner to inherit your share, you can record this in your Will.
Joint tenants vs tenants in common: Comparison table
| Feature | Joint tenants | Tenants in common |
| Ownership share | Equal 100% ownership together – no distinct shares | Can be split in any proportion (70/30, 60/40, etc) |
| On death | Passes automatically via the Rule of Survivorship | Passes according to the owner’s Will or Rules of Intestacy |
| Wills | Cannot pass your share via a Will | Essential to have a Will to dictate how your share is divided |
| Best for | Couples wanting total equality and automated inheritance | Couples contributing unequal deposits, or those with children or independent financial interests |
How to protect an unequal deposit
It’s entirely normal for one partner to contribute more to the deposit than the other – perhaps from savings, an inheritance, or the proceeds of a previous property sale. You shouldn’t have to choose between buying a home together and protecting your individual contribution. With the right document in place, you can do both.
A Declaration of Trust (also known as a Deed of Trust) is a legally binding document that records exactly what each person has contributed and is entitled to. It can set out:
- Initial contributions: How much each party paid towards the deposit
- Ownership proportions: The percentage of equity each person holds
- Future contributions: How mortgage repayments, renovation costs, or other outgoings may affect shares over time
- What happens on sale: How the net proceeds are divided if the property is sold
A Declaration of Trust is submitted to the Land Registry, making it legally enforceable. It gives both of you clarity from day one and, if a dispute ever arises, provides a clear legal record of your original intentions.
Check out our guide to unmarried couples’ cohabitation property rights that will help you understand how assets are handled outside of marriage.
Any outside contributions from parents or other family members should be documented too. It’s important to be clear about whether the contribution is a gift or a loan, and to whom it would be repaid. You might need a separate loan agreement, as well as a Declaration of Trust and a cohabitation agreement, which can all be used to record this properly. Importantly, you can get a Declaration of Trust and a cohabitation agreement, they complement rather than exclude the other.
What does joint and several liability mean for your mortgage?
When you take out a mortgage together, you are both jointly and severally liable for the full debt, not just your respective share of it. Even if your Declaration of Trust records a 30% ownership share, your mortgage lender doesn’t recognise that split. In the lender’s eyes, each of you is responsible for 100% of the outstanding mortgage. If your partner stops paying their share, the lender can legally pursue you for the entire outstanding balance, regardless of any private agreement between you.
This risk doesn’t disappear because you have a Declaration of Trust. That document protects your equity position, but it doesn’t change your liability to the lender. Understanding this distinction clearly before you sign can save a great deal of difficulty later.
What can a cohabitation agreement protect you from beyond the property?
Property ownership and mortgage arrangements are only part of the picture. A Declaration of Trust covers the property itself – it doesn’t extend to the wider financial life you share as a couple. That’s where a cohabitation agreement can make a real difference.
A cohabitation agreement sets out how you’ll manage your finances as a couple, including:
- Shared bills
- Savings
- Personal assets
- What happens to joint assets if you separate
It’s not legally binding in the same way as a Declaration of Trust, but courts are increasingly giving them decisive weight when they’ve been properly prepared.
Expert advice from one of our solicitors
Martha Holland, Senior Associate at our family law office in Kingston, says:
“It is important to keep in mind that it is possible, at law, to argue that the true beneficial interest of a property i.e. who should benefit from its ownership, can be different to how the property is legally held on the title register. The Declaration of Trust deals with the legal ownership and is very helpful to setting out clearly how the parties intended to own the property.
“However, that intention can change over time, through financial contributions towards mortgage, renovations or just general changes within the household. Just because the Declaration of Trust is not updated to reflect that, does not preclude one party from successfully arguing that it no longer reflects the current intention. A cohabitation agreement is a great way of adding further protection, as it can set out clearly what types of financial contributions may, or may not, alter how the parties which to hold the property beneficially, as well as giving couples clarity on how they intend to structure their finances.”
What happens if an unmarried couple splits up?
If you separate and cannot agree about the property, the dispute may fall under TOLATA, the law used to resolve property disputes between unmarried couples. TOLATA claims can be time-consuming, costly, and uncertain, especially if nothing was agreed in writing at the point of purchase.
For a broader picture of what separating as an unmarried couple can involve, our guide on what happens when unmarried couples separate is a helpful starting point.
Key steps to protect yourself when buying a house together
If you’re in the process of buying a property with your partner and you’re not married, here’s where to start:
- Decide on your ownership type: Talk to your solicitor about whether joint tenants or tenants in common is right for your situation, based on your contributions and long-term intentions
- Have a solicitor draft a Declaration of Trust: If your contributions are unequal (or even if they’re equal but you want clarity), a Declaration of Trust protects both parties and creates a legally binding record
- Make or update your Wills: It is always best practice to have an up-to-date Will in place.If you choose tenants in common, a valid Will is essential. Without one, your share may not pass to the person you intend
- Consider a cohabitation agreement: If you want protection that extends beyond the property itself, covering bills, savings, and other joint assets, a cohabitation agreement offers broader coverage
- Understand your mortgage liability: Make sure you both understand what joint and several liability means before you sign. Your equity split and your debt liability are two separate things
- Take legal advice at the point of purchase: It’s far easier (and less costly) to put the right documents in place now than to try to unpick things further down the line
Our cohabitation experts answer frequently asked questions
“Can an unmarried partner be removed from the mortgage without their consent?”
No. Both parties named on a joint mortgage must consent to any change in the mortgage arrangement. Removing someone typically requires remortgaging in one person’s sole name, subject to the lender’s approval and affordability checks.
“What happens to the property if one partner dies and there is no Will?”
If you own as joint tenants, the Rule of Survivorship applies, and the surviving partner inherits automatically. If you own as tenants in common and there is no valid Will, the Rules of Intestacy apply – and an unmarried partner has no automatic right to inherit under intestacy law in England and Wales.
“Can we change our ownership type after we’ve bought?”
Yes. You can change from joint tenants to tenants in common, or vice versa, after purchase. This is done by severing the joint tenancy and notifying HM Land Registry. There is no fee to register the change, though you should take legal advice to make sure it’s recorded correctly.
“Does a Declaration of Trust need to be updated if we make home improvements?”
It may do, yes. If significant financial contributions are made after purchase, such as funding a major renovation, it’s worth reviewing your Declaration of Trust to make sure it still reflects your intentions accurately. A solicitor can advise on whether an update or addendum is needed.
Talk to a cohabitation solicitor
Buying a home together is one of the most exciting things you’ll do as a couple. Making sure you’re both protected shouldn’t feel like a chore, and with the right advice early on, it really doesn’t have to be.
If you’re unsure about ownership structures, equity splits, or what documents you need before you complete, our specialist cohabitation solicitors are here to help. They’ll provide clear, straightforward advice and offer practical steps you can take.
Speak to the team for legal advice tailored to your situation.
Keep reading…
What is a commitment ceremony?
What’s the legal reality of living together before marriage?
What are the advantages and disadvantages of cohabitation?
Originally written April 2025
