Is a Cohabitation Agreement Valid after Marriage?
23 May 2018
If you get married, a Cohabitation Agreement may be taken into consideration by the Court should you get divorced later. However, to avoid uncertainty, it is best to enter into a Prenuptial Agreement instead.
Cohabitation Agreements are for couples who are living together but are not planning on getting married anytime soon. In the eyes of the law living together without being married or in a Civil Partnership is known as 'Cohabiting'.
Cohabitation Agreements allow a couple to decide what will happen, should they break up in the future. Generally, the agreement will deal with the division of financial assets and debts, such as what will happen to a joint mortgage. It can also set out other arrangements, such as who will stay in the family home.
The advantage of a Cohabitation Agreement is that it ensures all these decisions are made at a time when the feelings between you are amicable. By its very nature, a Cohabitation Agreement has to be fair to each person. So if you and your partner break up in the future, you both know that the division of assets (and other arrangements) will be reasonable.
If you have certain assets that you wish to protect, then a Cohabitation Agreement will also enable you to do this. For instance, if you purchase an asset together in unequal proportions, the Cohabitation Agreement can stipulate how much each person should get, should you split up.
Cohabitation Agreements after Marriage
However, you might not split up. In fact, you may go on to get married. If so, what status does your Cohabitation Agreement have then? Is it still enforceable? Or does it automatically become invalid (which will certainly be the case for any Wills you or your partner have made before getting married)?
The answers to these questions largely depend on the wording of your Cohabitation Agreement. Some will state what will happen to the agreement in the event of your marriage, whereas others are silent on the matter. So you should check the terms of your Cohabitation Agreement and, to make doubly certain, seek legal advice from a Family Law Solicitor.
If your Cohabitation Agreement does not make provisions for your marriage, or is silent on the matter, you cannot be confident that it will be upheld if you later get divorced. This can put you in a vulnerable position, as once you are married, your husband or wife will have far greater rights to your assets.
For example, your Cohabitation Agreement may say that if your relationship breaks down, you will continue to live in the family home because you are the sole owner. But once you are married, your spouse will be entitled to a share of this property, and the starting point is often a 50/50 split. If the Cohabitation Agreement cannot be enforced, you will have to give up a percentage of this property, despite being the sole owner.
To prevent this from happening, you will need to enter into a Prenup Agreement before getting married.
This is a prudent step even if you think your Cohabitation Agreement will still be valid, as it shows that you both still accept the terms of the arrangement. This will prove to the Court that you consented to the agreement in the knowledge that you were soon to be married – a legal status which gives you far greater rights over your spouse's assets.
Getting a Prenup Agreement is very similar to getting a Cohabitation Agreement. You need to decide what will happen to your assets and debts and set these decisions out in a written document. Each of you must then seek independent legal advice and, if you are both happy with the agreement, sign the document in front of an independent witness.
Once you get a Prenup Agreement, your Cohabitation Agreement will become invalid. Should you go on to get a divorce, the Court will take the Prenup into consideration when deciding on a financial settlement. If you both sought independent legal advice, and the Prenup is deemed to be fair and reasonable to each person, then it is likely to be upheld by the Courts in England and Wales.
At Co-op Legal Services we offer fixed fee Prenup Agreements. Once we have provided you with a written quote for the agreed work to be done, that price will not change.