Cohabitation Agreements

A cohabitation agreement is a written document for unmarried couples living together. It outlines their financial plans and living arrangements during the relationship, as well as what happens if they separate.

The main benefit of a cohabitation agreement is avoiding potential issues or disputes upon separation, which can be costly and stressful. As an unmarried couple, the rights of cohabitees are extremely limited. Contrary to popular belief, ‘common law marriage’ is a myth. You don’t acquire rights similar to married couples, no matter how long your relationship or whether you have children together.

When married couples separate the courts have broad powers to address finances, including splitting pensions, changing property rights and ordering maintenance payments.

While no specific law declares cohabitation agreements legally binding, they are essentially contracts and thus enforceable if drafted and executed correctly. Family courts intervene only in cases of legal disputes, such as breach of contract.

Since a cohabitation agreement is a contract, it must adhere to contract law principles, including;

• Signed and executed as a deed by both parties.
• Both parties intend it to be enforceable.
• Both parties understand the agreement’s nature.
• No party is pressured to sign.
• No misrepresentation of facts.
• The agreement aligns with the law.

For maximum protection, the terms of a cohabitation agreement should be fair and reasonable. Unfair terms increase the risk of a court setting the agreement aside.

Therefore, couples are strongly advised to seek independent family legal advice before finalising an agreement.

The agreement can cover various aspects, including:

• Interests in properties
• • Details of each property owned (jointly or individually)
  • Intentions of each property (e.g. keeping a property as ‘separate’ with no claim by the other partner
  • For joint property, specify each person’s share and what happens upon separation (sale, transfer, equity division)

• Bill payments
  • Who pays rent, mortgage, and bills, or the contribution percentage of each partner.
  • Arrangements for joint mortgage payments after separation.
• A cohabitation agreement can also address:
  • Personal belongings: Specify ownership of furniture, jewellery, pets, cars, gifts, etc., and how jointly owned items are handled upon separation.
  • Debt: Outline how debts are managed and who is responsible after separation.
  • Post-separation living: Detail immediate living arrangements upon separation including timelines for moving out if necessary.
  • Bank accounts and savings: Clarify whether accounts are ‘separate’ or ‘joint’ and how joint balances are divided upon separation.
• Financial provision upon separation
  • Couples may agree to a term of maintenance, paid by one party to the other following separation. The cohabitation agreement should set out the terms of that agreement for example, how much will be paid and when as well as when the payments expire.
• Pensions
  • Unlike married couples, unmarried couples have no automatic right to a pension share. A cohabitation agreement can address this in case of separation or death. As pension schemes vary, check with your provider about beneficiary nominations, which can be documented in the agreement.
• Financial provision for children
  • Child maintenance is primarily handled by the Child Maintenance Service (CMS). Cohabitation agreements cannot override CMS decisions, so either parent can seek a CMS assessment if they believe the agreed amount is insufficient. However, agreements can cover expenses beyond child maintenance, such as extracurricular activities, school fees, uniforms, and holidays.
• Arrangements in relation to children
  • Cohabitation agreements can outline arrangements for children during the relationship and after separation, including living arrangements, school runs, and holiday schedules. However, these arrangements are not legally binding, and either parent can seek a court order for custody or visitation if the relationship ends.
• Upon death
  • Unmarried couples have no automatic inheritance rights if one partner dies without a will. Making a will is strongly advised and can be referenced in the cohabitation agreement. Consider a Lasting Power of Attorney, allowing your partner to make decisions if you become incapacitated. Seek legal advice from a specialist family law solicitor for proper documentation.

Cohabitation agreements offer clarity and certainly, if a couple separates, outlining rights, responsibilities, and next steps. This provides peace of mind for both parties. The agreement can benefit the economically weaker partner, potentially providing for maintenance, which unmarried couples aren’t typically entitled to. Moreover, a cohabitation agreement can help avoid stressful, costly legal disputes, particularly during emotional times. Should a dispute arise, the agreement serves as valuable evidence of the couple’s original intentions in court.