What Does A Cohabitation Agreement Cover And Is It Legally Binding?

While prenuptial agreements are commonly associated with marriage, similar agreements can also be used for couples who are living together without being married. These agreements are often referred to as “cohabitation agreements” or “living together agreements.” They can cover a variety of topics, including the division of property, financial responsibilities, and even define the terms of the relationship itself.

How is cohabitation defined?

At its simplest, it is classed as a couple who are living together but aren’t married or in a civil partnership. There is a common assumption that if couples have lived together for a set period of time, their relationship will be recognised as a “common law marriage”. In England and Wales, there is no such recognition, and in reality, such a relationship has no basis in law or formal status. Very often, when the relationship breaks down or a partner dies, an unmarried partner will find themselves in dire straits, with little hope of remaining in the family home or obtaining a financial settlement.

The situation is slightly different when unmarried couples have children because there are legal provisions that apply to those under the age of 18. However, there remains no legal protection for their parents. When it comes to the family home, this will be dealt with under property law, and where children are involved, it is handled under the Children Act 1989. As you might imagine, this is focussed very much on the needs of the child. The court will take the income of both parents into account, but if awarded, the purpose of maintenance payments is to make sure the resident parent provides care for the child and nothing more.

In respect of the family home, the resident parent will only be permitted to live in it until the youngest child is 18. After this, if the home is owned in the sole name of the non-resident parent, it will revert to them. Maintenance payments will also stop at this point, meaning that the resident parent could end up with nothing after spending years caring for the children.

Is a cohabitation agreement legally binding?

Fundamentally, a cohabitation agreement is a legal document which is enforceable by the court. That is providing it is properly executed, both parties have given an honest account of their finances and received independent legal advice as to the agreement’s terms and implications.

As discussed above, since unmarried couples do not have the same rights as their married counterparts or those in a civil partnership, preparing a legal document such as a cohabitation agreement, in conjunction with a will, can be valuable if you separate. The aim here is to anticipate the issues and deal with them from the outset, so if your relationship breaks down, you will hopefully avoid costly litigation.

What can a cohabitation agreement cover?

A cohabitation agreement can strengthen a relationship by reducing the worry, preventing disagreements, and avoid potentially expensive court proceedings. But what should put in it? The following is a non-exhaustive list:

  • How jointly owned debts will be dealt with
  • Contributions to rent, mortgage and household bills
  • If you own a property together, how each of you may have contributed to the deposit and whether this should be reflected in the shares in which you hold the property
  • How any joint bank accounts will be dealt with
  • Whether you will take out life insurance on each other. You may have to do this if you have a mortgage together, as it may be a condition of lending
  • Nominating the other as a beneficiary under a pension
  • How items you purchased together, such as cars or furniture, will be split if you separate
  • What happens to any pets you have
  • What happens to your children and how they will be financially supported

A couple from Sudbury in Suffolk recently found a more unorthodox solution to their cohabitation issues. After moving in together and getting into arguments about chores, they decided to define the tasks that each of them had to do. The agreement covered everything from cooking to cleaning, and they included clauses setting out what happens if they breakup. Dylan said it had removed all the tension from their relationship because if there is any argument, all they have to do is refer to the document for confirmation.

A cohabitation agreement can even include clauses such as date nights and holidays. But whatever you decide to put in, it can avoid any potential conflicts down the line and make sure you are both on the same page from the beginning.

Does a cohabitation agreement have to stay the same if circumstances change?

A cohabitation can be reviewed and amended as changes occur. For example, if you buy a house together, have children or one of you becomes ill. It is important to say that any changes cannot be made by one party alone, and must be done by the consent of both parties.

How is a cohabitation agreement enforced?

If the worst happens and you need to have the terms of your agreement enforced, the family court will look at it very closely when deciding how assets will be divided when couples separate.

What happens if one of us dies?

If you are cohabiting and worried about what will happen if one of you dies, it is important to outline your wishes in the cohabitation agreement. You should also seek advice about making a will; this is particularly important if you want your partner to inherit your estate if you die, because unmarried couples do not automatically inherit the other’s estate. In addition, if you die intestate (without a will), then your estate will pass under the rules of intestacy, which do not include unmarried partners.

It is worth noting that cohabiting parents with dependent children who need support following the death of their partner will be able to apply to the government for bereavement benefits, which weren’t previously available to unmarried parents.


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