Selling a House After Separation When Not Married

When a married couple separates, the family court has wide powers under the Matrimonial Causes Act 1973 to divide assets — including the family home — in a way it considers fair, regardless of who holds the legal title. Unmarried couples have no such safety net. If you are not married or in a civil partnership, selling your shared home after a relationship breakdown is governed by property law, not family law, and the rules are fundamentally different.

This guide explains how property ownership works for unmarried couples, what your legal rights are, how to resolve disputes, and how to move forward with a sale — whether you agree with your former partner or not. It applies to England and Wales; property law in Scotland and Northern Ireland is different.

How property ownership works for unmarried couples

The starting point for any dispute is how the property is legally owned. There are three common scenarios, and each has different implications for what happens when you separate.

Both names on the title: joint tenants

If you bought the property together and are registered at HM Land Registry as joint tenants, you each own the whole property together. There are no defined shares. If one of you dies, the property passes automatically to the survivor (the right of survivorship). On separation, the starting presumption is that you own the property equally, but this can be challenged if there is evidence of a different intention — for example, if one partner paid the entire deposit and there was an understanding that this would be reflected in the ownership split.

Both names on the title: tenants in common

If you are registered as tenants in common, each of you owns a defined share of the property. These shares can be equal (50/50) or unequal (for example, 70/30 to reflect different deposit contributions). The shares are usually set out in a declaration of trust prepared by your solicitor at the time of purchase. On separation, the shares in the declaration of trust will normally determine how the sale proceeds are divided, unless one party can show that the agreement should be varied.

Only one name on the title

If only one partner's name is on the title, that person is the sole legal owner. The other partner has no automatic legal right to any share of the property. However, the non-owning partner may be able to claim a beneficial interest — an equitable share that exists despite not being reflected on the title. This is where the law of trusts becomes relevant.

Beneficial interest: the difference between legal and equitable ownership

In English property law, there is a distinction between legal ownership (whose name is on the title at HM Land Registry) and beneficial ownership (who is entitled to the economic benefit of the property). These can be different. A person whose name is not on the title may still have a beneficial interest, and therefore a right to a share of the proceeds when the property is sold.

For unmarried couples, beneficial interests typically arise in one of three ways:

1. Express trust (declaration of trust)

A declaration of trust is a written document that explicitly states each party's share of the property. It is the clearest and most reliable way to establish beneficial ownership. If you have one, it will usually be conclusive unless there is evidence of fraud, mistake, or a subsequent agreement to change the shares. The leading case is Goodman v Gallant [1986], where the Court of Appeal held that a declaration of trust was definitive of the parties' beneficial interests.

2. Constructive trust

A constructive trust arises where one party has acted to their detriment in reliance on an agreement, arrangement, or understanding that they would have a share in the property. The classic example is where the legal owner promises their partner that the property is "ours" and the partner then makes significant contributions — paying the mortgage, funding renovations, or giving up their own home — in reliance on that promise. The key cases are Lloyds Bank v Rosset [1991] and the more recent Supreme Court decision in Jones v Kernott [2011], which set out how the court determines the size of each party's share.

3. Resulting trust

A resulting trust arises where one party makes a direct financial contribution to the purchase price of a property that is in another person's name. If you paid part of the deposit or contributed to the purchase price directly (not mortgage payments), the law presumes that you intended to acquire a proportionate share. Resulting trusts are narrower than constructive trusts because only direct contributions to the purchase price count — paying bills, decorating, or contributing to household expenses is not sufficient.

No home rights for unmarried partners

One of the most significant differences between married and unmarried couples is home rights. Under the Family Law Act 1996, a spouse or civil partner who does not own the family home has a statutory right to occupy it and can register that right as a notice on the title at HM Land Registry. This prevents the owning spouse from selling the property without their knowledge.

Unmarried partners have no equivalent right. If your name is not on the title deeds, you have no automatic right to live in the property after separation, regardless of how long you have lived there, whether you have contributed to the mortgage, or whether you have children together. The legal owner can, in principle, ask you to leave and sell the property without your consent.

If you believe you have a beneficial interest in the property, you should act quickly to protect it. You can apply to HM Land Registry to register a restriction on the title, which prevents the property being sold or transferred without your knowledge. This does not prove that you have a beneficial interest, but it preserves your position while the dispute is resolved.

Agreeing to sell: the simplest route

If both parties agree to sell the property and can negotiate how the proceeds should be divided, the process is straightforward and follows the same steps as any standard property sale. You will need to:

1. Agree on how the net sale proceeds will be split after the mortgage is repaid and selling costs are deducted
2. Instruct a conveyancing solicitor to handle the sale — you can use the same solicitor if there is no dispute, but separate solicitors are advisable if there is any tension
3. Gather the documents needed to sell your house, including the title deeds, TA6 form, TA10 form, and EPC
4. Put your agreement on the split in writing, ideally as a formal deed prepared by a solicitor, to avoid later disputes
5. Market the property, accept an offer, and proceed through the standard conveyancing process

The typical timeline from accepted offer to completion is 12 to 16 weeks. For tips on reducing this, see our guide on how to sell your house fast. For a detailed breakdown of conveyancing fees, see our guide on conveyancing costs.

When you cannot agree: TOLATA 1996

If you cannot agree on whether to sell, how to divide the proceeds, or who has the right to occupy the property, either party can apply to the court under the Trusts of Land and Appointment of Trustees Act 1996 (commonly known as TOLATA). This is the primary legal route for resolving property disputes between unmarried cohabitants.

What the court can do under TOLATA

Under Section 14 of TOLATA 1996, the court can:

• Declare each party's beneficial share of the property
• Order the property to be sold and the proceeds divided according to those shares
• Order that one party can remain in the property for a specified period (for example, until children reach 18)
• Order one party to buy out the other's share

What the court considers

Under Section 15 of TOLATA 1996, the court must consider:

• The intentions of the person or persons who created the trust (i.e. the purpose for which the property was bought)
• The purposes for which the property is currently held
• The welfare of any minor who occupies or might reasonably be expected to occupy the property as their home
• The interests of any secured creditor (such as a mortgage lender)

In practice, if there are no dependent children living in the property, the court will usually order a sale. If children are involved, the court may delay the sale — sometimes until the youngest child turns 18 — but the share of the proceeds each party is entitled to remains unchanged.

Costs and timeline of a TOLATA claim

TOLATA claims are made in the county court. The typical timeline and costs are as follows:

These costs can escalate significantly if the case is complex or if one party disputes the facts. Unlike in family court divorce proceedings, the losing party in a TOLATA claim can be ordered to pay the other side's legal costs, which adds a further financial risk. This is a strong incentive to negotiate or mediate before going to court.

Mediation: a better alternative to court

Mediation involves a neutral third party helping both sides reach an agreement. It is not compulsory for unmarried couples (unlike in many divorce proceedings, where a Mediation Information and Assessment Meeting is required before court), but it is strongly recommended by solicitors and the courts.

The advantages of mediation over a TOLATA court claim include:

• Cost. Mediation typically costs £500 to £2,000 per person, compared with £5,000 to £20,000 or more for court proceedings.
• Speed. Most mediations are completed within one to three months, compared with six to twelve months for a court case.
• Control. In mediation, both parties decide the outcome. In court, a judge decides, and the result may not satisfy either side.
• Confidentiality. Mediation is private. Court proceedings are a matter of public record.
• Flexibility. A mediator can help you explore creative solutions (such as one party buying the other out over time) that a court would not typically order.

You can find accredited mediators through the Family Mediation Council or the Civil Mediation Council. Any agreement reached in mediation can be formalised as a legally binding deed or consent order.

Protecting your interest: practical steps

Whether you are the legal owner, a joint owner, or a partner whose name is not on the title, there are steps you should take as soon as possible after separation to protect your position.

If your name is on the title

• If you are joint tenants, consider severing the joint tenancy by serving a notice of severance on your former partner. This converts the ownership to a tenancy in common, meaning your share passes through your will rather than automatically to the other owner if you die. You can serve this notice without the other party's agreement.
• Obtain an official copy of the title from HM Land Registry (£3 online at gov.uk) to confirm how the property is held.
• Locate any declaration of trust or other written agreement about the ownership split.
• Keep records of your financial contributions: mortgage payments, deposit contributions, renovation costs, and any other payments related to the property.

If your name is not on the title

• Register a restriction with HM Land Registry to prevent the property being sold without your knowledge. You can apply using Form RX1 if you claim a beneficial interest.
• Gather evidence of your financial contributions: bank statements showing mortgage payments, receipts for renovation work, and any written communications (texts, emails) where the legal owner acknowledged your interest in the property.
• Take legal advice from a solicitor who specialises in cohabitation disputes or TOLATA claims. Many offer a fixed-fee initial consultation.
• Do not move out without taking legal advice. While you have no home rights as an unmarried partner, leaving the property can weaken your negotiating position.

Selling with a mortgage: joint and sole borrowers

If there is a mortgage on the property, this adds another layer of complexity. Key points to understand:

• Joint mortgage. If both of you are named on the mortgage, you are both jointly and severally liable for the full amount. This means the lender can pursue either of you for the full outstanding balance, regardless of any private agreement about who pays what. You both remain liable until the mortgage is repaid in full, whether through sale, remortgage, or a transfer of equity.
• Sole mortgage. If only one person is named on the mortgage, only that person is liable to the lender. However, if the other partner has been making contributions, this may support a claim for a beneficial interest in the property.
• Missed payments. If your former partner stops paying their share of the mortgage, this can damage both of your credit scores (if the mortgage is joint) and ultimately lead to repossession. If you are unable to resolve the situation, contact your lender as early as possible to discuss options.

If you are selling the property, the mortgage will be repaid from the sale proceeds at completion. Your solicitor will handle this as part of the standard conveyancing process. For a detailed breakdown of what this involves, see our guide on how long conveyancing takes.

Children and the family home

If you have children together, their welfare is a key consideration — both in practical terms and in how the court approaches any TOLATA application. However, the legal position for unmarried parents is different from married couples in important ways:

• The court has no power to transfer property between unmarried partners solely because they have children together. Unlike in divorce, where the court can transfer the family home to the parent with primary care, TOLATA only determines ownership shares based on property law principles.
• A parent can apply under Schedule 1 of the Children Act 1989 for the court to settle a property for the benefit of a child. This can result in the parent with primary care being allowed to remain in the property until the youngest child turns 18 or finishes full-time education. However, the property reverts to the legal owner after that period — it is not a permanent transfer.
• If a TOLATA application is made and there are children living in the property, the court will consider their welfare under Section 15 of TOLATA 1996, which may lead to a delay in the sale but not a change in the ownership shares.

How this differs from selling during divorce

If you are comparing your situation with that of a married couple, there are several important differences. For a detailed guide on the divorce process, see our guide on selling a house during divorce.

Practical tips for selling after separation

1. Get legal advice early. The rules for unmarried couples are less protective than for married couples. A solicitor specialising in cohabitation disputes can assess your position and advise on the best course of action before you make decisions you cannot reverse.
2. Put everything in writing. Once you reach any agreement about the sale or the division of proceeds, have it formalised in a legally binding deed. Verbal agreements are difficult to enforce.
3. Try mediation before court. Mediation is cheaper, faster, and gives both parties more control over the outcome. Courts increasingly expect parties to have attempted mediation before issuing proceedings.
4. Start sale preparation early. Even if you are still negotiating the split of proceeds, you can begin gathering the documents needed to sell your house and instructing a solicitor. This means you are ready to move quickly once terms are agreed.
5. Keep paying the mortgage. If you have a joint mortgage, missed payments affect both of your credit scores. Keep up payments even if you disagree about the property, and keep records of every payment you make — they may be relevant to the final settlement.
6. Do not make improvements without agreement. Renovating or improving the property without your former partner's agreement can complicate the division of proceeds. Any increase in value from your improvements may or may not be reflected in your share.
7. Consider the tax implications. Unmarried couples are not entitled to the Capital Gains Tax relief that applies to married couples and civil partners transferring assets between themselves. If the property is not your main residence, you may face a CGT liability on any gain. Take tax advice alongside your legal advice.

Sources

• Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) — legislation.gov.uk
• Family Law Act 1996, Part IV (home rights) — legislation.gov.uk
• Children Act 1989, Schedule 1 — legislation.gov.uk
• Jones v Kernott [2011] UKSC 53 — Supreme Court judgment on beneficial interests for cohabitants
• Stack v Dowden [2007] UKHL 17 — House of Lords judgment on the presumption of equal shares for joint owners
• Lloyds Bank plc v Rosset [1991] 1 AC 107 — leading case on constructive trusts and beneficial interests
• Goodman v Gallant [1986] Fam 106 — Court of Appeal on declarations of trust
• Citizens Advice — "Living together and breaking up" — citizensadvice.org.uk
• GOV.UK — HM Land Registry: official copies, restrictions, and forms — gov.uk
• Law Society — Conveyancing Protocol, 5th edition — lawsociety.org.uk

Related guides

• Selling a House After Separation When You Have Children
• Selling a House After Your Spouse Moves Out

Frequently asked questions