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Why you should seek a Cohabitation Agreement

Since 1996, the number of families across the UK has risen by 15%, from 16.6m to 19m, and of those, the co-habiting couple family (one in which the couple are not married or in a civil partnership) is now the fastest growing sub-group (3.3m as of 2017).  


Due to the lack of recognition of the concept of a ‘common law’ marriage in the UK, those entering into cohabitation arrangements do not enjoy the same legal rights as married couples, leaving many in vulnerable financial and legal positions should the relationship end.

The government has recognised the rising proportion of cohabitees and as a result the Cohabitation Rights Bill, which infers more rights on this growing proportion of the demographic, is passing through the Houses of Parliament, albeit frustratingly slowly.

In the absence formal legal rights, couples who are cohabiting can, however, have put in place arrangements to provide much needed protection for themselves and their children; in the form of a ‘Cohabitation Agreement’.

What is a Cohabitation Agreement?

Cohabitation is defined as living together in the same household without being married or in a civil partnership and applies to opposite sex and same-sex couples.  A Cohabitation Agreement can be drafted by Solicitors specialising in family law, ensuring that the specific needs of both individuals are catered for.  It is important that both parties seek independent legal advice when considering a Cohabitation Agreement, as this will ensure a fair and balanced outcome, free of duress or undue influence.  It is also critical that agreements of this nature are entered into freely and voluntarily.

At the outset, it is incumbent on both parties to fully disclose their respective income, assets, liabilities, and capital, by completing a financial statement to be attached to the agreement.

In respect of assets, the document will record any jointly owned property, and what will happen to it in the event the cohabitation arrangement ends.  Any property which will remain in separate ownership (even if shared during cohabitation) should also be documented.  All possessions and household contents should be catalogued as part of the agreement, stating who owns what, and what will happen to each item after separation.  It is now very common for the ownership of chattels to be shared equally, and if the couple cease to cohabit, the items be auctioned, and the proceeds split – either equally, or in proportion to how much was spent by each person.  Alternatively, it is possible to divide possessions on the basis of ‘rotation’ whereby each party in turn selects the items they wish to keep.

What are the rights of cohabiting couples?

The agreement can also include whether bank accounts will be separate or joint.  If joint, the document will record how much each party is expected to deposit – typically monthly or quarterly.  Other considerations which can be included within the document include:

  • Each parties’ rights, interests, and obligations to household expenses
  • Occupation of property – e.g. if owned by one party, what will happen on their death
  • Any financial support arrangements between cohabiting couples – during and after cohabitation (including for children)
  • What will happen to any pets should the parties separate
  • When the document should be reviewed and any conditions for variation

Drafting a Will When Cohabiting

Cohabiting couples entering into a Cohabitation Agreement should also update or create a Will.  Cohabitees, unlike married couples or those in civil partnerships have no automatic legal right to all or part of the estate of a cohabitee who dies intestate (i.e. without a valid Will). As such, each party should consider creating a Will to provide their partner or a dependent child with financial provision in the event of their death.

It is also prudent to ensure that the Will is consistent with the terms of any Cohabitation Agreement, as any inconsistency or conflict may cause unnecessary delays in the administration of the deceased’s estate.  For example, if the Will states the property in which the couple were cohabiting in should be bequeathed to a son or daughter, but the Cohabitation Agreement states the surviving cohabitee can remain in the property until their death, there is potential for legal and familial conflict.  Disputes of this nature can become complex, stressful, and lead to damaged family relationships, therefore it is important to ask your Solicitor to ensure Wills and Cohabitation Agreements are compatible at each level.


So, Should we have a Cohabitation Agreement?

As cohabitation becomes increasingly common, it is likely many couples are doing so without the full understanding of the legal implications for themselves, their partner, or their children.  Indeed, even if you plan to marry in the future, seeking legal protection in the form of a Cohabitation Agreement should still be sought in the interim.  The time and cost of doing so is justified given the potential risks of not doing so.  While you will, of course, plan to remain together forever, by protecting you and your family now, if you do breakup, you can move on without risking a bitter, expensive legal dispute.

No one wants to consider the worst, but having a cohabitation agreement drafted professionally can be an important step in protecting yourself and your assets. If you'd like to create a cohabitation agreement for you and your partner, Guillaumes family solicitors are happy to support you in this important decision.

12 February 2019
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