It’s not uncommon for a couple who live together to believe that since they are in a relationship, and cohabiting, that they have certain rights akin to those of a married couple. Do unmarried couples have the same rights as a married couple? What happens if your relationship ends? In this blog, Jane Auty, a Family Law Solicitor at Thornton Jones, aims to give clarity to these questions and outline why you should have a cohabitation agreement if you live together but are not yet married.
What is a Cohabitation Agreement?
A cohabitation agreement is a document that is an agreement between the two parties of the relationship and clearly details how assets are owned and shared and what would happen to those assets should the relationship end.
A cohabitation agreement is binding if at the time of entering into it, the document is drafted and executed properly, it is signed as a deed, and both parties have been in receipt of independent legal advice. In addition, there must be no evidence that either party has entered into the agreement under duress. A Court will consider whether the terms of the cohabitation agreement are reasonable and do not overly advantage or disadvantage either party.
What does a Cohabitation Agreement Cover?
Let’s be clear, a cohabitation agreement doesn’t extend to asserting who should be making dinner on a Monday evening. It’s meant to outline matters like finances and can cover both the day-to-day financial obligations of a relationship (such as who pays the rent and who pays for the food) to the major assets brought into the relationship and/or acquired during the relationship (such as a deposit for a house or a maturing investment).
A cohabitation agreement can also detail the financial obligations of a relationship that are shared and what the proportions of that obligation are. Is it a 50:50 split when paying the utility bills?
When should I make a Cohabitation Agreement?
For most couples, making a Cohabitation Agreement is best done at the time of cohabitation however in rental situations when a couple first start to cohabit maybe it is less of a priority. However when a couple’s relationship becomes more serious and entwined, whether that be through the joint ownership of a property or maybe even having children, the decision to cohabit and not marry would give weight to the benefits of making a cohabitation agreement.
A cohabitation agreement is a fluid document meaning it can be amended at any time in the future and this is a frequent occurrence as people’s lives change and develop. An example may be whereby one party is in receipt of some inheritance and that is used to reduce the outstanding joint mortgage. Other examples are if you later have children, move house, or encounter a significant change in your financial situation.
Keeping your cohabitation agreement up to date is really important. You can however future proof the agreement by including anticipated events.
What are the benefits of having a Cohabitation Agreement?
A BBC News article in 2017 showed that as many as two-thirds of cohabiting couples believed in a ‘common law marriage’ and assumed they had some of the legal rights as a married couple. Unfortunately this isn’t the case and with cohabitation increasing year on year the risk of assuming this is growing. For those who wish to have some legal protection should their relationship breakdown, then other than getting married or entering into a civil partnership, making a cohabitation agreement should be on their list of things to do.
What are the advantages of having a Cohabitation Agreement?
- A cohabitation agreement will clarify and agree each person’s entitlement to the home. If one person owns the home then potentially the other would not be entitled to remain living in the property or take any financial provision even if they have contributed to the household. Further to this, if the property is jointly owned then irrespective of contributions made the assets would be divided equally, unless there are any other document such as a declaration of trust which indicate otherwise. This is particularly relevant if one person had injected a cash sum as a deposit when purchasing the property.
- A cohabitation agreement can specify future provisions. Unlike divorce, cohabitation doesn’t provide for ongoing support of either party. This is particularly relevant where there are children involved or whereby one party has been financially dependent upon the other and upon separation, with no prior arrangement agreed, there would be no maintenance payments made. Of course child maintenance would be payable as there would still be an obligation to provide financial support for any children.
- A cohabitation agreement can ease the stress in the event of a break up. Upon separation, there will often be many things to sort out. Verbal agreements will not carry weight in court and if the split is acrimonious will likely be contested. The answer? Make a cohabitation agreement.
How do you get a Cohabitation Agreement?
In the first instance you will need to have an open and honest conversation with your partner. Discussing the reasons why a cohabitation agreement is required and agreeing in principle the terms of an agreement. Largely this will centre around the home, any equity or anticipated future equity, and cash, investments, savings and potential future assets such as inheritance.
Once you have reached an agreement then you will need to speak with a solicitor to have your discussions and agreements drawn up into a formal agreement – the cohabitation agreement.
The costs will differ depending on the complexity of your situation and agreement. Here at Thornton Jones, the fees start from £500 plus VAT for a Cohabitation Agreement. It should also be noted that before the agreement can be finalised, both parties must seek independent legal advice to ensure that the agreement is considered fair and is not being made under duress. The signing of the agreement must also be signed in the presence of witnesses.
What happens to a Cohabitation Agreement if you get Married?
This depends on the wording of the agreement, some will state what is to happen to an agreement in the event of your marriage. If the cohabitation agreement does not make provision for your marriage or is silent on the matter, you cannot be confident it will be upheld if you later get divorced. As such, many couples who enter a marriage with assets such as cash, savings, property and investments replace the cohabitation agreement with a prenuptial agreement thereby protecting each person’s assets should the marriage come to an end.
If you wish to discuss whether a cohabitation agreement or a prenuptial agreement is for you then please call us for a free and no obligation chat at any of our four offices.
Call our Wakefield office on 01924 290 029
Call our Garforth office on 0113 246 4423
Call our Ossett office on 01924 586 466
Call our Sherburn in Elmet office on 01977 350 500
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