Cohabitation agreements22 Mar 2023 | Sarah Norman-Scott
Unmarried couples who live together do not have the same legal protection as married couples and civil partners when they break up. Our solicitors can help you draft a robust cohabitation agreement so that both parties’ interests are protected during a relationship and/or in the event it breaks down.
What is a cohabitation agreement?
A cohabitation agreement is a document between two people who live together as a couple which sets out your intentions and agreement regarding finances, which if executed correctly is a legally binding document. It sets out how the couple should manage their finances, both during the relationship and after they split up and can regulate how property is to be owned. It can also be used as protection to confirm conclusively that one party will not be able to claim against the other’s property.
You can make a cohabitation agreement at any time, either before or after you move in together.
Why do I need a cohabitation agreement?
Cohabiting couples are the fastest-growing type of family in the UK. Many people believe that cohabiting “common law” couples have the same legal rights as married couples, but this is not the case. There is no such thing as a common law marriage in England and Wales, even if you have been together for a long time. This means currently your relationship has no legal status in the eyes of the law. One of you could be left facing significant hardship if your partner becomes seriously ill or dies, or if you split up.
A cohabitation agreement can protect you financially and emotionally, both now and if something goes wrong in the future. For example, it can give you:
- Rights to make medical decisions on behalf of your partner
- A share of property, investments and savings
- Access to each others’ pension if you separate
What rights do couples have with and without a cohabitation agreement?
Without a cohabitation agreement, the law in England and Wales treats each partner as a separate legal entity with no responsibility to each other if they separate. This means:
- Both parties can walk away from the relationship taking everything they own with them
- Neither of you will have any right to claim maintenance or financial provision from the other if you break up (although you may have to make child maintenance payments)
- You won’t automatically inherit anything – including property – from your partner if they die without a will
- You will not be treated as next of kin in a medical emergency and will not be able to plan your partner’s care
- If you have separate bank accounts, the surviving partner will not be legally able to access the other’s account if they die
- Your state pension is not automatically passed on to your partner
- You do not have the same tax benefits as a married couple and may have to pay tax when you transfer assets to each other, like a house or a large amount of money
What should be included in a cohabitation agreement?
A cohabitation agreement can be as broad or as narrow as you choose, but typically directs:
- How you will pay the mortgage, rent, bills and joint expenses
- How you will own property
- What happens if one person contributes more financially towards a property purchase or home renovation costs
- What happens to the family home if the relationship ends, for example, who can stay in it and what should be done with the sale proceeds
- How you will deal with debts
- What happens to jointly owned possessions, investments, pensions and savings during the relationship and after it ends
- Whether maintenance payments will be made after a breakup
- How you will support any children if you separate
By setting out these arrangements in a legal contract, you can have peace of mind knowing that everything has been agreed upon in a fair way. This takes away a lot of the emotional pressure of a breakup.
How long do cohabitation agreements last?
Cohabitation agreements are valid for as long as the relationship lasts. If your circumstances change, you can update the agreement to reflect this. It’s always best to review and update your cohabitation agreement at least once every couple of years or when there is a major life event such as having a baby, buying property or starting a business to ensure it accurately reflects your current situation.
Is there going to be a change in the law?
Unfortunately, the government will not commit to reforming the current law (as at 2023). The government has said that it wants to conclude the work on the law of marriage and divorce before it could consider any changes to the law in respect of the rights of cohabitants, which is deeply disappointing.
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Sarah Norman-Scott Associate Solicitor
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