Getting a cohabitation agreement

Getting a cohabitation agreement

Cohabitation, i.e. living together as a couple without getting married or entering into a civil partnership, is becoming ever more popular. The 2021 Census, for example, showed that 24% of couples in England and Wales were cohabiting, up from 20% in 2011.

But, contrary to popular belief, couples who cohabit do not have the same rights upon relationship breakdown as couples who are married or in a civil partnership.

There is no such thing as a ‘common law marriage’. Accordingly, one former cohabitant has no right to seek financial support from the other at the end of the relationship, as they would if they were married.

And this can result in serious financial hardship for the financially weaker party, especially where they do not have an interest in the home where they lived, or have given up their career to bring up a family with their partner.

One way for cohabitants to protect themselves is to enter into a cohabitation agreement, often referred to as a ‘living together agreement’.

What is a cohabitation agreement?

A cohabitation agreement is a legal document setting out agreed arrangements between a couple who are cohabiting, or are about to cohabit, in particular in relation to their property and finances.

There is no set form of a cohabitation agreement, and the sort of arrangements it might cover can be quite varied. However, perhaps the most important arrangements will be to do with what should happen in the event that the relationship ends.

This could, for example, cover what should happen to the property each party owns or rents, including the home in which they lived, and what financial provision should be made for any children of the relationship. It can also cover what should happen if one party dies, alongside a will.

Other things that might be covered by a cohabitation agreement are such things as who will pay the rent, mortgage or household bills while the couple are still together.

Obviously, the intention of the parties is that the agreement is legally binding. But is that so?

Are cohabitation agreements legally binding?

Clearly, there would be little point in entering into a cohabitation agreement if it was not legally binding.

Obviously, whether a cohabitation agreement is binding will ultimately be for a court to decide.

And the court will normally uphold the agreement, provided that it was freely entered into, is in the proper form, and that its terms are not unfair.

To ensure that the agreement is fair the parties will need to take independent legal advice before signing it, and will need to make disclosure of their property and finances, so that the lawyers can advise upon the fairness of the agreement.

The agreement will need to be kept up to date in the event of major life changes. In particular, it may need altering if the couple subsequently have children, unless that eventuality was already covered by the agreement. An agreement that is not appropriately updated may not be binding.

Can you write your own cohabitation agreement?

As mentioned above, the parties will need to take legal advice before signing the agreement, but can they write the agreement themselves?

It is, in theory at least, possible for the couple to write their own cohabitation agreement, but it is strongly recommended that the agreement is drawn up by lawyers.

As also mentioned above, the agreement is a legal document, and it is therefore essential that it clearly sets out the terms agreed between the parties. This really means that it should be drafted by an expert lawyer.

It is also essential that the agreement is in the proper form, and properly signed by the parties. Obviously, the lawyer will ensure that this is the case.

How We Can Help

For more information, see our Living together agreements page. To contact a member of the team, please visit our Contact Us page.

Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration.