Planning for the Future with a Cohabitation Agreement

20 March 2017

By Family Law & Divorce Solicitor Sarah Milner

Over the years, it has become more common for couples to live together without ever getting married. Many people believe that once you have lived with a partner for a certain length of time, you have the same rights and legal protection as married couples. This is not the case. In English Law (the law in England & Wales) there is no such thing as a common law husband or wife, and the law in relation to property and other assets is very different to that for married couples.

The Law for Married vs Unmarried Couples

If a couple were married and the marriage broke down, in the eyes of the law it would not matter whose name the assets were in or who had contributed most financially during the marriage; both husband and wife would have a right to a share of all the assets and the starting point is a 50/50 split. There also might be a case for spousal maintenance, particularly if one person worked and the other stayed at home with the children.

This is not the case for couples who are unmarried and living together, known as Cohabiting, even if they have children. The law treats cohabiting couples and their assets as separate.

So for example, if you were living in a property that was owned by your partner in their sole name, you would not automatically have a share of the property on separation.

To get a share, you would have to make a claim through the Court and prove that you had an interest in the property, usually by providing evidence that you have made financial contribution towards the purchase or mortgage repayments. This can be a difficult and long drawn out process, especially if you have been living together for some time, as the evidence may no longer be available. Also you would not be entitled to any form of maintenance, other than standard child maintenance if you had children together.

What is a Cohabitation Agreement?

A Cohabitation Agreement is a document which sets out what is to happen to your assets should the relationship break down. It sets out who owns what and in what proportion, and makes it clear how all property (whether that be property owned by one person or jointly owned property) is to be dealt with. It can also include whether one person is going to pay the other any maintenance.

A Cohabitation Agreement can be made at any time, either before you move in together or if you have already been living together for some time.

Is a Cohabitation Agreement Legally Binding?

Whilst Cohabitation Agreements are not currently legally binding, as long as it’s been properly drafted, with both parties getting independent legal advice, then it’s very likely to be followed by the Court. However, usually if a couple have entered into such an agreement, both parties would honour what was agreed and so there would be no need to take the matter before a Court.

What Can a Cohabitation Agreement Include?

The agreement can cover anything you want it to but would usually cover the following:

  • Family home – who owns the family home and what is to happen to it on separation. Also who pays the mortgage, bills etc. and who is to pay these after separation.
  • Money – it’s common for people living together to have a joint bank account or both contribute towards bills. The level of contribution and how any accounts should be split on separation can be included in the agreement.
  • Pensions – whether you intend to nominate your partner to receive death-in-service benefits.
  • Personal possessions – how these are to be divided on separation.
  • Children – although this wouldn’t be legally binding, you can include details about financial provision for any children above child maintenance, for example the payment of school or university fees.

When getting a Cohabitation Agreement, it’s important to get independent legal advice. This will ensure that you know exactly what you are agreeing to, and the implications this could have for you in the future. If you would like to know more about Cohabitation Agreements, or you are looking for a Solicitor to draft an agreement on your behalf, our specialist Solicitors can help you.

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