Do I Need a Cohabitation Agreement?

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With more and more couples choosing to live together before they get married or indeed, choosing not to get married, it is important to consider what rights and protections you have should you and your partner choose to go your separate ways. One way to protect yourselves to enter into a cohabitation agreement.

According to BBC News two thirds of UK couples believe they are in a “common law marriage”. You only have to fill in a car insurance renewal to be asked if you have a relationship with a “common law partner.” Perhaps, unsurprisingly, many in the UK live under the misapprehension that, if there is a breakdown in their relationship, they have legal rights akin to those of married couples.

Unfortunately, there is no such thing as a “common law” husband or wife and there are no special legal rights as a result. The only way, other than marriage or a civil partnership, to protect jointly bought assets as a cohabiting couple, is to enter into a cohabitation agreement.

What is a cohabitation agreement?

A cohabitation agreement is a legal document which sets out how the assets you both have are owned or shared between you and what will happen to those assets if you were to separate. These agreements are sometimes called ‘living together agreements’, or a ‘no-nup.’

A cohabitation agreement will normally set out the financial considerations and payments made by each party and how the proportional payments are made.

When should I get a cohabitation agreement?

It can be difficult to broach the subject of a cohabitation agreement, but it is worth considering whether to enter into an agreement if you are moving into property together or expecting a child. Like all agreements, once signed it is worth revisiting it if one or both of your circumstances change, whether this is a new job, a relocation or a change in your financial positions.

If you later marry your partner, unless you both agree otherwise, a cohabitation agreement can continue to be effective both during and after your marriage. The family courts do, however, have a wide discretion to consider financial matters should you later divorce. You should therefore take expert legal advice and carefully consider the effect of any agreement further down the line. Some couples will often add a clause stating that the contract will end on marriage or be converted to a pre-nuptial agreement.

When will it be considered by a court?

A cohabitation agreement can be considered by a court if both partners received independent legal advice and it is established that neither has signed the agreement under duress. The court will also need to consider if the terms of that agreement are ‘reasonable.’ The court will also consider whether an agreement has not been fairly updated to account for any major life changes, but if these major life changes form part of the agreement this can be taken into account.

Why should I get a cohabitation agreement?

A cohabitation agreement will allow both parties in a relationship to be able to discuss up front what entitlement and share you respectively “own” of any property. It also means that you can legally protect your right to live in a property if that property is not in your name. It is your chance to establish clearly your own agreement as to the starting point should you separate and what your plans are for the future both for good and for bad.

A key benefit of having a cohabitation agreement in place is that, should you separate, it can provide a plan for what should happen next in what is often a difficult and upsetting time. A written agreement can help provide certainty for you both if, for example, a property needs to be sold or for one of you is going to leave.

It is always worth taking advice from a solicitor if you are considering entering into a cohabitation agreement to protect any investments or to protect your future rights. As with all contractual agreements, it is important to have an open and honest conversation with your partner about what they are prepared to agree. Both of you will need to seek independent advice on whether the agreement you reach is fair and protects both of you.

Many people feel that both cohabitation and pre-nuptial agreements are “unromantic”. For some, the mere suggestion of entering into one means a relationship is “doomed to fail.” However, an open conversation with your partner and recording in writing what you both plan for the future will allow you both to clearly understand your rights and obligations. It will also allow both of you to give each other some of the rights already enjoyed under the law by married couples and those in civil partnerships. It is worthwhile contacting a solicitor to discuss the options that will provide both of you certainty and security in your relationship where the law does not automatically provide for the same.

Here to Help

If you are thinking on entering a cohabitation agreement and would like some advice, please contact Kerrie Hall, Senior Solicitor specialising in Family Law.

Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.