Every couple, including same sex couples, who are thinking of living together (cohabiting) should take legal advice before doing so. This may not be the most romantic action to take, especially when usually there is a greet deal of excitement and happiness but we urge you to not be naive and make sure you are protected in the future.
Many people mistakenly think that by cohabiting they acquire legal rights such as becoming a “common-law wife”. However, this is a misconception, as English Law does not recognise this concept.
Although the issues that arise on the breakdown of a cohabiting couple’s relationship are similar to those that arise on the breakdown of a marriage, the law does not provide the same legal remedies. For example, cohabitees are not entitled to ask for maintenance from each other nor are they entitled to a financial settlement under which assets can be transferred between them. Cohabitees have to fall back on trust and property law to resolve disputes between them over property, which can be complex and unsatisfactory.
For these reasons, it is crucial for couples contemplating cohabitation to take specialist legal advice before they do so. One potential suggestion from your solicitor may be to enter into a “cohabitation agreement”. Now you may be asking what is this…? Let us answer your questions.
What is a Cohabitation Agreement?
A Cohabitation Agreement is a legal document that sets out what should happen to your assets, debts and other arrangements, should you and your partner break up in the future.
Who is a Cohabitation Agreement for?
Cohabitation Agreements are for cohabiting couples, which means you are living with your partner, but you are not married.
What does a Cohabitation Agreement do?
A Cohabitation Agreement basically looks into the future and imagines a scenario where your relationship comes to an end. Should this happen, it is likely that you will have a lot to sort out, such as –
• How to divide your assets
• How to share your debts
• Who is going to continue living in your home and who is going to move out
• Whether one person is going to give the other maintenance
• How any children are going to be provided for, over and above their basic needs
A Cohabitation Agreement allows you to make all of these decisions, and to set them out in a legal document.
Why will a Cohabitation Agreement help?
A Cohabitation Agreement will help to protect each person’s position because you can decide what will happen to your finances, property and children, should your relationship end. The advantages of doing this in advance are twofold.
Firstly, you will make these decisions at a time when the feelings between you are amiable. This means you are much more likely to make arrangements that are fair and reasonable to each person. If you wait until you break up, the ill will between you may be such that you find it difficult to reach a settlement. If so, you will have no choice but to make a decision based on what the law says. And as the law does not provide for unmarried couples, this will leave the weaker party in a very vulnerable position.
Secondly, separations are always hard. If you then have to debate and barter as to who gets what, it can make things all the more difficult. At least if you have already made these kind of decisions, it will be one less thing that you have to worry about.
Are Cohabitation Agreements legally binding?
Cohabitation Agreements are legally binding to an extent. By this we mean that they are certainly taken into consideration by the courts, and as long as the agreement is deemed to be fair and reasonable to each person, and both of you sought independent legal advice before signing the document, it will be upheld.