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Is a Cohabitation Agreement the same as a Prenup?

05 January 2018

Cohabitation Agreements and Pre-nuptial Agreements (Prenups) are both available to couples who are not married, but there are some key differences between them. We outline how each of these agreements works and when they might be used. This information applies in England and Wales.

There are many different types of agreements that couples can enter into, to regulate what will happen (usually in relation to their finances) if they were to separate. It can be confusing to know which is the right type of agreement for you and your partner, and what the difference, if anything, between them is.

If you are not married, there are two types of agreement you can enter into, a Cohabitation Agreement or a Pre-nuptial Agreement, commonly known as a Prenup. But which one is right for you?

What is a Cohabitation Agreement?

A Cohabitation Agreement is an agreement entered into by a couple who are living together (also known as cohabiting). Many couples decide to enter into a Cohabitation Agreement when they move in together or purchase their first home together, and have no intention of getting married in the near future.

Unmarried couples do not have the same rights and legal protection as married couples, regardless of how long the relationship lasts for or whether the couple have children together.

The law for cohabiting couples is very different to the law for married couples. For cohabiting couples, each person’s assets are treated as their own separate property (unless they’re owned in joint names).

Unlike a married couple, when cohabiting neither person has any entitlement to claim any form of maintenance from their partner should they separate, except for standard child maintenance if they had children together.

A Cohabitation Agreement sets out what will happen to the assets should the relationship break down, including who owns what and in what proportion. It also makes clear how all property is to be dealt with. A Cohabitation Agreement can also include whether one person is going to pay the other person any maintenance.

What is a Prenup?

Pre-nuptial Agreements (or Prenups) are made by people entering into a marriage or civil partnership, before the marriage or civil partnership takes place. In order to enter into a Pre-nuptial Agreement you have to be planning your marriage or civil partnership and know when it is going to take place.

The purpose of the Prenup is to record the agreement reached between you and your partner in relation to what will happen to your finances should the marriage breakdown. The main reason for couples to have a Prenup is if they want to agree something different than what they may be entitled to under law when married. This is usually to protect assets that one person owned prior to the marriage.

Are they Legally Binding?

Whilst neither of these agreements are legally binding, it is very likely that they will be followed by the Court as long as they are properly effected, with both people getting independent legal advice. However, usually if a couple have entered into such an agreement, both people would honour what was agreed and so there would be no need to take the matter before a Court.

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