Cohabitation agreements – a simple guide

What is a Cohabitation Agreement?

A cohabitation agreement is a form of legal agreement reached between a couple who have chosen to live together. The purpose of a cohabitation agreement is to provide clarity for the duration of a relationship. Cohabitation agreements are legally binding contracts, provided that they are drafted and executed properly, and are signed as a deed.

Do my partner and I need a cohabitation agreement?

Laws relating to the separation of cohabitees are entirely different to those which apply to married couples, so it would be sensible to draw up a cohabitation agreement. Dealing with the financial consequences of the breakdown of a relationship between unmarried parties can be extremely stressful and expensive. Seeking legal advice and entering into a well drafted cohabitation agreement can alleviate many of these issues. 

What can a Cohabitation Agreement cover?

Provisions that couples may wish to feature in a cohabitation agreement include, but are not limited to:

  • Property owned before moving in together—if one partner owns property, a cohabitation agreement can agree for this to be kept separate and prevent the other partner from having a claim over it. However, if the partner who does not own the property but makes contributions to the mortgage or carries out renovation work, they could have a claim to the property in the future.
  • Property bought while living together—if you buy a property while living with your partner and only one of you is named on the agreement, this will need to be addressed in the same way as above. If you are named as joint owners, you are both legally entitled to stay in the property if you should break up. You will therefore need to think about what will happen to the jointly owned property upon separation.
  • Household bills—if you and your partner are not joint owners of your home, or one of you contributes more than the other, one of you could agree to contribute to the mortgage but acknowledge that this will not give that person any claim over the property.
  • Financial provision for children – whilst agreements can be entered into regarding child maintenance this does not prevent either party from applying to the Child Maintenance Service for a calculation. Whilst the parties are free to enter into a written agreement, after a period of one year has passed either party can make a referral to the Child Maintenance Service.
  • Child arrangements – whilst arrangements for any child of the family post separation can be provided for in the arrangement, if the couple later end up going to court the terms of the agreement may not be strictly enforced. The terms may, however, provide guidance or context in any dispute.
  • Inheritance and willsit’s important to remember that if you are not married or in a civil partnership, you will not automatically inherit each other’s estates if one of you dies. If you want to leave anything to your partner, you will need to draw up a will and keep it up to date.
  • Personal possessions – these can often be overlooked but thought should be given to who owns what and who will keep what in the event of separation. 

Key considerations when setting up a cohabitation agreement 

  1. Obtain legal adviceA cohabiting family should obtain independent legal advice. This means each party will need to see a separate solicitor. One party cannot advise two people on the implications of the terms of an agreement as it is likely there will be a conflict of interest.
  2. Financial disclosureParties in a cohabiting relationship should exchange ‘financial disclosure’ (full details of their finances) to ensure that they are fully aware of the other parties’ financial circumstances. This will assist in drafting a comprehensive agreement.
  3. Provisions for childrenIf there are any children, provision should be made for them in the agreement.
  4. Reviewing the agreement as circumstances changeThe agreement should be reviewed regularly, particularly if a child is born or one party’s circumstances change, because, for example, they cease working or receive a large inheritance.
  5. Ensuring a fair agreement – cohabitation lawProper consideration should be given to whether the terms of the agreement are fair and are in line with the kind of order a court would make. The whole agreement may be deemed void if the outcome would be unjust: if, for example, a term dismisses either party’s claim for child maintenance.

Get in touch with a cohabitation lawyer from McAlister Family Law for advice on how to set up a cohabitation agreement with your cohabiting partner.