Do I need a Cohabitation Agreement?

The phrase ‘once bitten twice shy’ comes to mind when considering this question or perhaps you are a person who sensibly likes to be prepared for all eventualities and plan ahead.

What is a Cohabitation Agreement?

It is an agreement to enable unmarried couples who intend to live together or are already doing so, to clearly set out how their finances are to be dealt with in the event of separation.

It can cover property, contents, personal belongings, assets, pensions, savings, debts, provision for child maintenance (separate to any legal obligation to pay child maintenance) and ownership of family pets.

It can also provide for how day to day living is to be funded such as who pays the mortgage and bills.

Common Law Marriage

People often ask about common law marriage. This concept does not exist. Unmarried and cohabiting couples do not receive the same legal protection as married couples.

In contrast to divorce and resolving finances where all assets and the circumstances of the parties including children, are taken into consideration, this does not happen for cohabiting couples

If an unmarried relationship breaks down there can be a great deal of stress and upset, particularly when children are involved as there is over-reaching priority  given to the needs of the children as there is with married couples.

If a cohabiting couple jointly own property such as the family home, then this will be divided in accordance with legal ownership. However, some parties can find themselves in circumstances where they could essentially find themselves homeless.  For example if a man moves into his partner’s property that she owned prior to the relationship, he has always been the lower earner of the two and when  they go on to have children, he leaves his job to raise the children, then upon separation he has no legal right to the property and if the partner choses to evict him, she is able to do so.

Applications can be made under the Trusts of Land and Appointment of Trustees Act 1966 however you must satisfy certain requirements, these court proceedings can be expensive and come with risk along with a lot of stress.

Why would I want a Cohabitation Agreement?

It may feel wrong to consider an agreement in the event your relationship fails and a little negative, unromantic or as though you’re tempting fate. You may ask yourself why you are entering into a relationship with someone if your planning for the breakdown of that relationship.

In fact it should be seen as sensible and pragmatic and no different from writing a Will or pension planning.

Nobody enters into a relationship or marriage thinking it won’t work. However there is no harm in wanting to ensure that if it did come to the worst that you could both be saved a great deal of stress and upset and you and any children involved will have  some form of financial protection.

The number of cohabiting couples is growing. In 2020 it was 13.1% in contrast with 11.3% in 2010. It is clear that more people are moving away from marriage and towards cohabitation  According to the Organisation for National Statistics, there is an ageing married population. The proportion of the married population who are aged 70 plus is five times the proportion who are aged 30 and below.

Preparation is key. You may already have been through divorce and are looking to enter into a new cohabiting relationship;  you may have adult children and wish to ensure  you are not risking any assets that you wish for your children to inherit by entering into a new relationship.

It may be that you are looking to pool your assets with your new partner, possibly selling your property and buying a new property together; beneficial ownership will be recorded with the Land Registry either in your respective shares or joint ownership but who owns the contents and who pays the mortgage is not dealt with.

A Cohabitation Agreement can allow parties to have provision such as maintenance. Therefore if one party tells you they will always look after you financially if you do separate you may be able to record this protection in an agreement. It may be that you need a provision for children’s private school fees.

It is important prior to obtaining legal advice and drawing up an agreement that you and your partner sit down and carefully consider all assets that you own and what you want the order to provide for.

Is a Cohabitation Agreement legally binding?

If it has been correctly drawn up, there has been appropriate disclosure, all assets accounted for and both parties have taken advice, it should be binding and be held as a contract between the parties.

Fortunately, if you and your partner have gone to the effort of making such agreement and it has been properly drafted, it is unlikely you will wish to raise a dispute in Court as you both have your wishes in the event of separation documented.

The importance of both taking independent legal advice is to demonstrate that one party was not forced to sign the document.

It is sensible to have a review clause in a cohabitation agreement. During your relationship a lot can change such as purchasing new property, acquiring new assets or a vast shift in your income. For a Cohabitation Agreement to remain current it will need to be reviewed and may need to be amended throughout your relationship.

Do I need a Will?

It is always sensible to have a Will. Here at Andrew Isaacs Law we have a dedicated team offering a Will writing service. If you die without having a Will you die intestate and your estate is governed by the Intestacy Rules. The Intestacy Rules do not provide for cohabiting couples. It is therefore imperative you do draft a Will regardless of having a cohabitation agreement or not.

How can we help?

If you want further advice on a Cohabitation Agreement, an estimate of what it might cost and if it is suitable for your family’s circumstances then please do not hesitate to contact us and book a no obligation consultation with one of our experienced lawyers.

Roxanne Woolliams – Family Solicitor

19.04.23