When “What’s Mine” Becomes “What’s Ours” – How Marriage Changes Your Declaration of Trust

Many couples buy a home together before going into a marriage. Often, they sign a Declaration of Trust to set out who owns what share, reflecting their different contributions to the purchase price, mortgage, and upkeep.

A Declaration of Trust can feel like a watertight safeguard: “It’s in writing, so that’s how it will be split if we ever separate”.

But here’s the catch: if you later marry, that document may not protect you in the way you think.

What does a Declaration of Trust do?

A Declaration of Trust is a legally binding document that:

• records the beneficial ownership of a property (i.e. who gets the sale proceeds if the property is sold);
• states how the net sale proceeds should be divided; and
• can also set out responsibilities for mortgage payments and outgoings.

If you are unmarried and later separate, the courts will usually enforce the Declaration of Trust, unless there’s a strong reason not to.

How marriage changes your Declaration of Trust

Marriage does not automatically revoke your Declaration of Trust, it still exists as a legal agreement.

Did you know?

Marriage does not cancel your Declaration of Trust but, in a divorce, the family court can disregard it completely. The only realistic way to give ensure that your Declaration of Trust is taken account of during a divorce process is to back it up with a postnuptial agreement that meets the court’s fairness test.

However, if the marriage breaks down, the family courts decide how assets are divided under the Matrimonial Causes Act 1973. In doing so, their starting point isn’t the Declaration of Trust – it is the needs of both parties (and any children).

The family court has wide powers to redistribute assets between spouses, even if that means completely ignoring the terms of a Declaration of Trust.

Why can the Family Court ignore a Declaration of Trust?

The court’s overriding duty is to achieve a fair outcome, considering:

• the needs, obligations, and responsibilities of each party;
• the standard of living during the marriage;
• the ages, health, income, and earning capacity of each party;
• contributions made to the welfare of the family; and
• any children’s needs.

If meeting those needs requires reallocating property shares differently from your Declaration of Trust, the court can and will do so.

Myth

A Declaration of Trust guarantees the same split if we divorce.

Reality

In family law, needs come first. The court can re-allocate assets even if your Declaration of Trust says otherwise.

When might a Declaration of Trust still influence the outcome after marriage?

A Declaration of Trust is more likely to carry weight if the couple also enters into a postnuptial agreement after getting married, confirming how the property should be dealt with on divorce.

To have a good chance of being upheld, the postnup should:

• be entered into freely, without pressure;
• follow full financial disclosure from both sides;
• involve independent legal advice for each party; and
• still meet the needs of both parties and any children at the time of divorce.

Even then, the family court can depart from its terms – but it will be more inclined to respect an agreement that ticks these boxes.

Declaration of Trust and marriage: A real-life cautionary example

Alex and Jenny bought a house together before marrying.

Alex paid a much larger deposit, so they signed a Declaration of Trust giving Alex 70% and Jenny 30% of the equity.

They were married for many years before, sadly, the marriage broke down. Jenny was the main carer for their young child, and the family court decided Jenny needed to stay in the home for the child’s stability. The court ordered a 50/50 split when the property was eventually sold, ignoring the Declaration of Trust entirely.

A positive outcome

By contrast, Sam and Emma also bought as cohabitants, with a Declaration of Trust reflecting Sam’s larger contribution. When they got engaged, they reviewed their arrangements with their solicitors and signed a post-nuptial agreement shortly after their wedding, confirming that the Declaration of Trust should remain in force.

Years later, their marriage sadly ended. Although the court still considered both parties’ needs, the existence of the postnup and the Declaration of Trust meant that the judge started from (and largely upheld) the agreed division, giving Sam and Emma clarity and avoiding a lengthy dispute.

Married and have a Declaration of Trust? Here’s a Quick Tip

If you are already married and only have a Declaration of Trust, it is not too late. A postnuptial agreement can confirm your intentions and make it more likely the court will take your Declaration of Trust into account.

Practical advice if you have a Declaration of Trust and later get married

If you have a Declaration of Trust and later get married, don’t assume it will protect your interests on divorce. Instead:

1. Review your arrangements with a solicitor once you are engaged or married.
2. Consider a post-nuptial agreement that refers to the Declaration of Trust.
3. Get independent legal advice and make full disclosure to increase the agreement’s strength.
4. Remember: the family court’s job is to meet needs, not to enforce paperwork – but a well-prepared agreement can still influence the outcome.

In summary

A Declaration of Trust is a valuable tool for unmarried couples but, after marriage, it is no longer the final word. If you want it to carry weight in the family courts, you may need a postnuptial agreement as well.

How Elite Law Solicitors can help

We regularly prepare Declarations of Trust for cohabiting couples, as well as prenuptial agreements and postnuptial agreements designed to give those arrangements the best possible chance of being upheld. If you are buying together, getting engaged, or recently married, we can help you put the right agreements in place to protect your position for the future.

If you would like to speak to a member of our Private Wealth team or our Family Law team about any of these matters, we would be delighted to help. At Elite Law Solicitors, we are here to help you plan with confidence and gain peace of mind.

Book your free initial consultation today by calling 0800 086 2929, by emailing us at info@elitelawsolicitors.co.uk, or by completing our Free Online Enquiry Form.

Alternatively, if you would like to find out more, you can read our complete guide on Declarations of Trust, prepared by our Head of Private Client, Meg Wilton.