Unmarried cohabitants do not have the same protection in law as a married couple. What then happens if the relationship comes to an end?
A Cohabitation Agreement is a legal agreement that deals with how the parties’ assets are owned by the parties and what happens when their relationship ends. Unlike marriages and civil partnerships, there is no legislation in England and Wales for Cohabitation Agreements and so they fall under the normal contract rules.
A court may consider the provisions of a Cohabitation Agreement if :-
- The Agreement’s terms are reasonable.
- Both parties have received independent legal advice.
- Both parties have signed the Cohabitation Agreement freely and not under duress.
A Cohabitation Agreement is not intended to deal with day to day practical activities such as who does the cleaning/gardening as these are not legal matters. It can deal with financial considerations such as who will pay the mortgage, rent and utility bills or if the payment is shared, the proportion of each party’s payment.
Some couples like to have a Cohabitation Agreement in place at the commencement of their cohabitation. Others may decide to put an Agreement in place after they have commenced cohabitation or perhaps after the birth of a child or if the parties decide not to get married.
A Cohabitation Agreement should be reviewed regularly by the parties particularly when circumstances change e.g. the birth of a child, significant change in their financial positions, moving house etc. as a Cohabitation Agreement that has not been updated following a major change in the parties’ position or reviewed generally over time, may be found by a court to no longer be relevant or enforceable.
Many cohabiting couples in the UK believe they have a “common law marriage”. There is no such thing as a “common law marriage”. In England and Wales only people who are married, whether of the same sex or not or in a civil partnership, can rely on the matrimonial law to deal with the division of their assets when they divorce or dissolve their marriage/civil partnership.
A Cohabitation Agreement can:
- clarify each party’s individual entitlement to the home. If one party moves into a property owned by the other, he/she will have no automatic right to live there if the relationship ends, even if they have made contributions to the mortgage.
- establish who owns what and if each party should have rights they might not get automatically.
- include provisions for the future. If one party has been financially dependent on the other for years and has children, they will have no right to maintenance payments for themselves after a break up. Unlike divorce or dissolution of a civil partnership, cohabitation does not automatically carry an obligation for ongoing financial support of each other. There would be an obligation to provide financial support for any children.
- provide clarity and help to reduce the stress of a breakdown of the relationship.
In preparation for a Cohabitation Agreement, both parties should have an open and honest conversation to decide on the terms of the Agreement, how their assets are to be dealt with and what should happen to them on a breakdown of the relationship.
Both parties should obtain their own independent legal advice about the Cohabitation Agreement and whether the provisions are fair and protect their interests.
Unless otherwise specified, the Cohabitation Agreement continues to be in effect during the parties’ marriage, although whether or not it will be relevant and enforceable in the event of divorce is difficult to predict.
A Cohabitation Agreement cannot negate or supersede other legal rights eg. a legal right gained by marriage. The Agreement can provide that its provisions come to an end in the event of marriage.
Many consider a Cohabitation Agreement to be unromantic but it is a sensible document that allows the parties to be clear about their rights and what they own and what is to happen if the relationship comes to an end.
For further information please contact Susannah Taylor by email: STaylor@bowcockcuerden.co.uk
This article is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.