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Are you living with or planning to live with your partner? Do you think that you will have the same rights as a married couple, either now or after a particular period of time has passed? Unfortunately, that is not the case. There is no such thing as common law marriage and there is no equivalent of divorce proceedings for unmarried couples who separate. This can make things unduly complex and traumatic when a relationship breaks down.
We would strongly advise any couple who live together to have a cohabitation agreement from the outset, setting out in clear terms how financial issues would be resolved if there were to separate at a later date. This may seem unromantic but it can save huge costs, misunderstanding and distress.
A Cohabitation Agreement is a binding contract that an unmarried couple can use to formalise aspects of their finances, both during their relationship and in the unfortunate event of a separation. Terms of the agreement are discussed between the couple. If you want a more detailed agreement that governs other aspects of your relationship with the person you are living with, you might need a Cohabitation Agreement. If you are thinking of getting married or entering into a civil partnership (or have already), then a Pre or Post-Nuptial Agreement might be the best solution.
A Cohabitation Agreement can be drafted to suit your circumstances, whether you own a property in joint names or in sole names and whether you have children, or not, the aim is to ensure that financial aspects are discussed openly and early to reduce the chance of a dispute later on.
If you buy a property together when you are not married, or if one of you moves into the other partner’s property, there are certain default provisions that apply in law. These may not actually be fair in your situation. There is no such thing as “common law marriage”. There is no real protection in law for unmarried couples and so it is important to find out where you stand and ensure that your Cohabitation Agreement reflects the way that you would like matters to be dealt with in the unfortunate event of your relationship breaking down. Obviously, you hope that your relationship will not break down, but you could think of a Cohabitation Agreement as being similar to life insurance. You hope you will not need it but it is there to make a difficult time a little easier if the worst happens.
A Declaration of Trust can regulate the ownership of property, but many couples want to go further than just this issue, particularly as the law does not make any specific provision for unmarried couples. For example, you might want to formally agree that you will both execute Wills to ensure that properties pass in the way that you want them to on death. You might want to ensure that your life assurance policy is assigned to your partner or your children, or that your pension benefits are nominated to the correct person. A Cohabitation Agreement can deal with almost any circumstances in financial arrangements that you would like it to cover. It can deal with debts, either those that existed before your relationship or those that accrued during the relationship, as well as any inheritance or other financial windfall. It can give real peace of mind to have a written agreement in place so that you both know where you stand from the very beginning of your relationship or property ownership.
A Cohabitation Agreement is essential in this situation. There are various ways that your partner might acquire an interest in your property by making certain financial or even nonfinancial contributions during your relationship. It is therefore very important to make it clear from the outset that these contributions will not give them an interest in your property.
If you have children, or go on to have children whilst living with your partner, there are applications for financial support that could be made, depending on your and your partner’s financial circumstances, irrespective of what the Cohabitation Agreement says. It is important to take legal advice on this when entering into a Cohabitation Agreement. If you are getting married, then it is very important that you take legal advice before doing so. Your Cohabitation Agreement is likely to cease to be valid, but you may wish to enter into a Pre-Nuptial Agreement at the same time as a Cohabitation Agreement. The law for unmarried couples is very different from the law upon marriage. We can advise you on both.
We will provide you with full advice on what the law would be if you do not have a Cohabitation Agreement in place the aspects that this document can cover and the effect of having this agreement in place. The wishes of you and your partner and your individual financial arrangements will be fully explored and converted into a working document in the event that it is ever needed.
Partner, Mediator and Head of Family Law
“Caroline Keeley was professional, helpful and struck the perfect balance between representing my interests and being appreciative of the bigger picture.”
Family Law client, May 2024
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