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Insights // 23 April 2021

Do I Need a Cohabitation Agreement?

Solicitor Rebecca Ledgerwood, in our leading Family Law team, explains what a cohabitation agreement is and why you may need one if you are unmarried and living with your partner.

What is a cohabitation agreement?

A written agreement between two people living together in a committed relationship. Because there is no such thing as ‘common law marriage’ in this jurisdiction, couples can decide to protect their assets and interests in a cohabitation agreement. It sets out the financial arrangements for living together and covers how property, assets and income should be divided if they were to separate. Having a cohabitation agreement in place can make dealing with relationship breakdown much less stressful as it removes uncertainty around shared finances.

Why should I have a cohabitation agreement?

Unlike married couples, cohabiting couples have little protection in terms of financial claims against each other when the relationship break down.  The law provides for maintenance for children, and housing for children in some limited circumstances, but cohabitation does not give rise to an automatic right to a share in each other’s property.   Dealing with a shared property for unmarried couples can be complicated unless their intentions are set out clearly in a written agreement.  Unmarried couples can thus benefit greatly from a cohabitation agreement that regulates and clarifies the financial arrangements between them.

What happens if I don’t have a cohabitation agreement?

Unmarried couples who separate fall back on the legal principles of property, trust and contract. If there are children, they may have claims for housing, specific expenses or child maintenance.  But these claims are very limited when compared with those which arise through marriage, can be expensive and take a long time to resolve. A cohabitation agreement which sets what will happen on separation removes the need for a Court to intervene.

When should I enter into a cohabitation agreement?

You can enter into an agreement at any time; before or after you move in together. Sometimes big life events prompt people into preparing such documents – for example, prior to moving in together or purchasing a home. But even if you have been living together for many years you can still enter into an agreement.

What should the agreement cover?

Areas which are typically covered in a cohabitation agreement are the shared home, savings and other investments, life insurance, payment of household bills, personal possessions and financial provision for children on separation.  Parties can clearly set out their intention as to what should happen in each of these areas on relationship breakdown.

Are cohabitation agreements enforceable?

Where an agreement is properly drawn up, the terms set out are reasonable, and each party entering the agreement has had separate, independent legal advice on its effect, a court is more likely to uphold the agreement in the event of a dispute.

It is also prudent to include provisions that address potential future events, i.e. the needs of any future children, especially if these are known at the time of entering into the agreement and to review the agreement upon significant changes i.e. birth of a child.

What happens if we later decide to marry?

You can decide to translate the terms of your cohabitation agreement into a prenuptial agreement, reviewing the terms at the same time. Or you might decide that the marriage will bring the agreement to an end.

How does the process of reaching a cohabitation agreement work?

A specialised family lawyer can assist you to negotiate and draft the agreement. Each party will need separate legal representation.  Cohabitation agreements can also be worked out in mediation or via a collaborative law process.

Cohabitation agreements interact with wills and it is advisable to execute or update your will at the same time.  Cohabitees don’t inherit under intestacy rules and thus have to make claims against an estate if they are not provided for under the terms of a will.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Rebecca Ledgerwood

Rebecca Ledgerwood

Solicitor, Family Law

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