Understanding the importance of a cohabitation agreement

Under the present law couples who cohabit in England and Wales have few rights against each other should the relationship break down. As we will explain later on, a cohabitation agreement eliminates this issue.

Despite common belief, there’s no ‘common law marriage’, granting rights similar to married couples after cohabitation for a specified duration.

In a cohabitation breakup, neither partner can seek maintenance, and property ownership remains separate: ‘what’s yours is yours.’

This can obviously result in considerable hardship for the party who is weaker financially.

The situation is particularly serious if the property in which the parties lived is owned by just one party, meaning that the other party can be left homeless. There are some limited ways in which the non-owning party can claim a share in the property, for example where they have contributed towards its purchase, but such claims are notoriously difficult and expensive.

In case of death, a cohabitant may face financial vulnerability as they don’t automatically inherit their partner’s estate.

Parties can mitigate these risks by drafting a cohabitation agreement before they start living together.

What is a cohabitation agreement?

A cohabitation agreement outlines the division of finances, property, and child custody arrangements in the event of separation. Additionally, it can address arrangements if one party becomes ill or in case of death, complementing any existing wills.

Accordingly, the agreement can deal with such things as:

• Who is responsible for payment of bills during the relationship, for example the mortgage/rent, council tax and utility bills;
• Where the children will live should they separate, and what contact they will have with each parent;
• Who will pay maintenance for the children after separation;
• What will happen to the property in which they live if they should separate;
• Any other sharing of assets should they separate;
• What happens regarding a party’s pension if they should die (it may be possible to nominate the other party to be a beneficiary under the pension); and
• Next of kin rights in the event of a medical emergency.

The specifics of the agreement will vary based on individual circumstances and the parties’ preferences.

Is it legally binding?

A cohabitation agreement is legally binding if properly drafted, fair, and signed without coercion or pressure.

Both parties must fully disclose their financial situations before signing the agreement to ensure fairness and reasonableness.

Both parties should ideally seek independent legal advice before signing the agreement to ensure they fully understand its implications.

Note that if there is any change in the parties’ circumstances after the agreement is entered into, for example if they have children or purchase property, then advice should be taken as to whether the terms of the agreement should be reviewed.

Can I write my own cohabitation agreement?

A cohabitation agreement is a legal document and, as such, should really be prepared by a specialist lawyer, who will ensure that it is clear, that it properly gives effect to the agreed terms, and that it is legally binding.

Whilst you can try to save money by writing your own cohabitation agreement, this could well turn out to be a false economy if the agreement turns out not to be legally binding.

How can we help?

For further information on how we can help, please see our Cohabitation agreements page.

Walker Family Law is an award-winning family law practice, 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.

Please contact us if you require any further information.

For more information about cohabitation agreements and how we can help, see this page.