Buying a home together when you are not married: the Declaration of Trust explained

Buying a property together is the largest financial decision most couples make. For unmarried couples in England and Wales, it is also the decision that creates the most legal risk if the relationship ends without a clear written record of what was agreed. A Declaration of Trust is the document that fixes that.

Legal title is not the whole story

When you buy a property, two things are recorded. Legal title is who is registered as the owner at HM Land Registry. Beneficial interest is who actually owns the value, who gets what when the property is sold. These two can be the same, but they do not have to be.

If you buy together, you choose how the legal title is held on the Land Registry TR1 form:

• Joint tenants: equal ownership; on death, your share passes automatically to the other owner
• Tenants in common: distinct shares (which can be unequal); on death, your share passes under your will or the rules of intestacy

The TR1 form has a tick box. It is easy to leave it blank. If you do, the property is presumed to be held as joint tenants in equal shares.

What a Declaration of Trust does

A Declaration of Trust (or Deed of Trust) is a separate document that records the beneficial ownership in detail. It typically sets out:

• Each partner's contribution to the deposit
• How mortgage payments are split, and whether those payments build equity
• What happens to capital growth (split by share, split equally, or a formula)
• What happens if one partner pays for major improvements
• What happens on sale, on separation, or on death

It is binding on the parties as a contract and a trust. HM Land Registry can also be asked to enter a restriction on the title, ensuring the trust is honoured on any future sale.

Why it matters if you skip it

Without a Declaration of Trust, disputes between unmarried co-owners fall to the law of trusts. The leading cases are Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53. Both reached the highest court in the land precisely because the answer was not obvious from what the couple had done. The Supreme Court's approach is to start from the legal title, then look for evidence of a different common intention. Reconstructing that intention years later, through bank statements, text messages, and witness recollection, is expensive and unpredictable.

A common scenario

One partner puts down a £50,000 deposit. The other contributes nothing to the deposit but pays half the mortgage for ten years. They separate. What share of the equity does each receive? Without a Declaration of Trust, the answer requires a court to infer what they intended. With one, it is whatever you wrote down.

The practical sequence

1. Decide before you buy how the property will be held (joint tenants or tenants in common). 2. Disclose to each other what each partner is contributing, in cash and over time. 3. Agree how that translates into beneficial shares. 4. Record it in a Declaration of Trust, signed by both, ideally with a solicitor's review. 5. Keep it with your private financial agreement, and update it if circumstances change (one partner pays for a kitchen extension, for example).

For most couples, a Declaration of Trust costs a few hundred pounds. The litigation it prevents typically costs tens of thousands.