What is a Cohabitation Agreement?
There is a common misconception that cohabiting couples living together for many years, get the same legal rights as married couples. Married couples are viewed differently in the eyes of the law and there are various issues that cohabiting couples should be aware of in the event of a relationship breaking down.
Find out more about the myth of common law marriage.
Cohabitation agreements remove some of the potential for disputes and the substantial financial and emotional costs of litigation should a relationship end.
Both parties should agree on who takes ownership of what. Without an agreement, if you split up, one of you could be left with nothing.
What is included in a cohabitation agreement?
It documents which party owns what and how things like property, personal belongings, savings and other financial assets should the relationship breakdown. It can also cover how you will support your children and what role each party will play in their education and upbringing.
The agreement could set out day-to-day things such as management of finances, contributions to rent or mortgage and bills as well as other costs such as insurance.
If you do not own your home but it belongs to your partner, then unfortunately you do not have any automatic rights to remain in the property, even if it is for a set period of time while you look for alternative accommodation. Where there is a child involved, a court may allow a discretionary period for you to remain in the property.
Our family law specialists will be able to guide you in this respect.
If you have you significantly contributed to your partner's property with regard to mortgage payments renovations and general maintenance? If so, you may have a case to say that you have a proprietary interest in the property.
If you and your partner bought your home using a joint mortgage, then you will both have responsibility for that until it is paid, regardless of who remains in the property.
How to Protect Your Interests While Cohabiting
You can create an agreement stating what should happen in the event of a separation or even a death. You should consider making provision for any of yours or your partner's interests in the property by making a will.
It’s a good idea for cohabiting couples to make a Will, particularly if they have children together, or one has children who are treated as children of the ‘family’. This means that everyone’s needs will be considered should the relationship break down.
When do Cohabiting Couples Have The Same Rights As Married Couples?
You have the right to protection from the courts if your partner becomes abusive. The Family Homes and Domestic Violence legislation also applies to cohabiting couples.
Are Cohabitation agreements legally enforceable?
There is uncertainty about whether the terms of a cohabitation agreement will be upheld and enforced by the court. Cohabitation agreements were historically void on the basis of public policy as they were deemed to encourage sexual relations outside marriage. With the passage of time, social values changed and the law began to distinguish between “meretricious” agreements (where sexual relations form part of the consideration) and agreements that regulate financial and property affairs between cohabitees.
The view expressed by many commentators is that cohabitation agreements that regulate the financial and property affairs of cohabitees are enforceable. There have however been no recent cases testing this point.
The Law Commission has expressed reservations about the enforceability of cohabitation agreements and stated that “insofar” as cohabitation agreements are lawful, they are governed by ordinary rules of contract and can therefore be challenged on any of the following ordinary contractual principles:
• Undue influence
• Illegality on other grounds
When drafting a cohabitation agreement, it must comply with ordinary contractual principles so that the validity of the agreement cannot be challenged on any of the above grounds. This will reduce the scope for argument about the validity and enforceability of the agreement.
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