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Choosing to live together instead of getting married or entering into a civil partnership comes with distinct legal implications. It's important to be aware that, unlike married couples or those in civil partnerships, cohabiting couples do not have the same legal rights concerning property and support.
Understanding your legal rights as a cohabiting couple is crucial. Living together does not automatically grant you legal rights, and the law treats cohabiting couples differently. In the unfortunate event of a relationship breakdown, the lack of legal recognition can complicate matters.
While contemplating the end of a relationship is never pleasant, having a legally recognised Cohabitation Agreement or Living Together Agreement from the start can provide clarity throughout the relationship. This agreement can address property rights and support arrangements, potentially easing the process if the relationship does come to an end.
Our Family Law experts, can assist in understanding your rights and help put together a Cohabitation Agreement. Importantly, such agreements can be established at any point during the relationship, not solely at the beginning. These agreements are flexible and can be changed if circumstances evolve, though any modifications should be documented in writing.
It is important to note that a single lawyer cannot provide advice to both you and your partner when creating a Cohabitation Agreement. To ensure fairness, the process requires that each party consults with their respective lawyers. For this reason, seeking advice early in the process is crucial. Our expert team can assist you in drawing up a Cohabitation Agreement. Call us on 01827 317070 or email: sdavies@pickerings-solicitors.com
What is a Cohabitation Agreement?
A Cohabitation Agreement is simply a legal document detailing how you and your partner plan to own and share existing assets (including property). It covers financial, property, pets and child-related arrangements during cohabitation and provides clear guidelines in case of separation, illness, or death. It is important to note that you and your partner will need to use different lawyers to draft a Cohabitation Agreement.
Is a Cohabitation Agreement legally binding?
Yes. A Cohabitation Agreement is legally binding and enforceable by the courts in the UK, as long as certain conditions are met; it should be in writing, both parties should seek independent legal advice, there must be full financial disclosure, the agreement should be entered into voluntarily, and the terms should be fair and reasonable.
What things are covered by a Cohabitation Agreement?
A wide variety of topics may be covered by the agreement, and the exact content will reflect your particular circumstances. It might typically include how housing and property may be jointly owned, how much each partner will pay towards the rent or mortgage, household bills, costs of property improvements, what will happen if you decide to sell the property, child arrangements, division of assets and debts, as well as life insurance, pensions and next of kin rights...
How much does a Cohabitation Agreement cost?
The total cost of a Cohabitation Agreement varies based on several factors, including your chosen approach and the complexity of your situation. Our commitment to transparency means that you can expect a clear and comprehensive quotation for your agreement at every step of the process.
Do I need a Cohabitation Agreement?
It depends on your situation and preferences. If you're living together but not married, a Cohabitation Agreement can be beneficial to clarify financial matters and property ownership in case of a breakup. Consider one if you want to define rights and responsibilities, protect assets, and outline financial arrangements. Also consider that without one, if things were to go wrong in the relationship, it might end up costing you a lot of time and money. Furthermore, without one, disagreements about who owns what could end up in court, and if you lose, you might have to pay the other party's legal costs, which can be expensive and take a long time.
A cohabitation agreement can offer reassurance within your relationship and can be reviewed and amended periodically, with mutual agreement from both parties. By reaching an understanding either before or during your shared living arrangement, you will:
- gain a clear understanding of your financial commitments.
- prevent misunderstandings about your rights and responsibilities as cohabitants, especially concerning property ownership.
- avoid potential challenges and conflicts in the event of a separation.
- establish clear documentation of your intentions, serving as evidence should you have to go to court.
Who is protected by a co-habitation agreement?
A co-habitation agreement has the potential to safeguard the interests of either or both parties in the event of a relationship breakdown. Much like a pre-nuptial agreement, it can establish clear guidelines on how the pre-existing assets of one partner will be distributed if a breakup occurs or if the property is solely owned by one party and the other party moves in.
What is a Declaration of Trust?
A Declaration of Trust is a legal document linked to property, and you can make it when buying a property or afterwards. It outlines how two or more people share ownership of a property or land.
Each Declaration of Trust is unique, showing the special arrangement between the parties on how the property's value would be divided when sold, regardless of financial contributions.
The benefit of a declaration of trust is that it gives everyone involved certainty by officially noting their agreed-upon wishes, reducing the chance of future disputes.
What is the difference between a cohabitation agreement and a declaration of trust?
A declaration of trust specifically addresses joint property ownership, outlining each owner's interests and preventing disputes over property division. A cohabitation agreement is more comprehensive and covers various aspects of a couple's relationship, including finances and property rights.
Both documents serve different purposes but can complement each other in clarifying legal arrangements within a relationship.
How do I make a cohabitation agreement?
We can draft a legally binding agreement to cover your circumstances and what you would wish to happen in the event of the relationship breaking down.
The other party will then need to take the agreement to an independent lawyer and seek advice on it. This is an important part of the process to ensure that the document is legally binding and that both parties fully understand the agreement that is being made.
If you are cohabiting you may wish to make provision for the other person in your will too.
Can I make my own cohabitation agreement?
Templates are available on-line but it may not be held up in court if important details are missing. Seeking separate legal advice will ensure that the cohabitation agreement is comprehensive and likely to be held up in court.
Can a cohabitation agreement be amended?
Yes. A cohabitation agreement can be amended. It's advisable for both parties to agree on any changes and to formally document these amendments in writing. It's essential to ensure that the amended agreement is legally sound and that both individuals fully understand and consent to the modifications. Seeking legal advice during the amendment process can help ensure that the changes are properly executed and uphold the interests of both parties.
When should I update my cohabitation agreement?
You should consider updating your cohabitation agreement whenever there are significant changes in your relationship or living situation. Some common situations that may require an update include:
- Change in Circumstances: If there are significant changes in your financial situation, employment status, or family structure.
- Property Ownership Changes: If there are changes in property ownership, such as buying a new home together, selling a property, or if one partner's name needs to be added or removed from the title.
- Major life events: such as the birth of children, changes in health, or other significant life changes can impact your cohabitation arrangements.
- Periodically reviewing the agreement: every few years, even if there are no major changes in your situation, it is good practice. This ensures that the agreement remains relevant and reflects your current intentions.
- Mutual Agreement: If both parties agree that certain terms of the agreement need adjustment or clarification, it is a good time to consider an update. Open communication is key in this process.
Remember, the key is to ensure that the cohabitation agreement accurately reflects the current state of your relationship and living arrangements. Seeking legal advice when considering updates can help ensure that the changes are properly documented and legally enforceable.
Should I have a joint account?
This is down to personal preference and will depend on your individual situation. Should you opt for a joint account, you will need to determine whether contributions to this account should be equal, and establish a plan for dividing the account balance in the event of a separation. The same scrutiny should be applied to savings. Pensions should also be considered and individuals might want to designate their pension or death-in-service benefits to benefit their partner, effectively allocating the funds to them. However, this depends on the willingness of the specific pension scheme to accept such nominations.
Is a common law wife/husband entitled to property or assets if we split?
There is no such thing as common law marriage. If you are not married regardless of how long you have lived together, you are not automatically entitled to financial support. You should seek legal advice.
Many people believe that where a couple lives together as husband and wife, they are in a 'common law marriage' even though they are not actually married. However, this is a myth. Contrary to popular belief, cohabitees do not have the same rights in law as a married couple.
While marriage brings with it a series of legal protections in the event of divorce, for unmarried partners the situation is different.
It is important that such couples are aware that on breakdown of their relationship the division of 'family assets' and the financial support available may be very different from what they envisaged.
Often the main asset that a couple will possess is the family home. When couples split up, and agreement has not been reached, the family court can be asked to exercise its wide powers to impose a fair and reasonable solution which can include changing the ownership of the property or altering how much each owns in the property.
It is not necessary for both parties to have made a monetary contribution to the property. One may have been the breadwinner and the other the home maker.
What happens to our home if we break up?
In the event of a breakup for a cohabiting couple, the outcome regarding the division of their home depends on various factors, particularly the nature of property ownership and the intentions of the individuals involved.
If the couple purchased as 'joint tenants', either of them could apply to the court for an order that the home is to be sold and that the proceeds are to be divided equally between them.
If the property was bought as ‘tenants in common’ then it's assumed that both will have a beneficial interest in the property to the extent that they contributed.
However, if the property is owned solely one of the individuals, an investigation has to be made as to whether the other has an interest because they have contributed to its purchase, mortgage repayments or repair and improvement.
If there has been no such contribution, what the parties said to each other or led the other to believe by their conduct may be important and what they intended has to be considered.
It is not uncommon for one of the couple to find that, despite living together in the same home for many years owned by the other, they have no interest in the property because they made no financial contribution to it and there was no indication from the other that it was a joint property.
Upon separation, they may have to leave without any financial help from the other to re-house.
What happens to my child if we break up and are cohabiting?
Unlike married couples, cohabiting couples do not have the same automatic legal rights and responsibilities concerning children. Emphasis is always on the child's best interest and consideration should be given to:
Child Custody and Residence: The primary concern is often the living arrangements for the child. If you and your partner cannot agree, the court may have to decide on issues such as where the child lives and how often the non-resident parent sees the child.
Parental Responsibility: If you are the biological mother, you automatically have parental responsibility. For fathers, this responsibility is not automatic unless they are listed on the birth certificate, or if they have acquired it through a parental responsibility agreement or court order, or marry the mother.
Financial Support: Both parents are generally responsible for financially supporting their child. The non-resident parent may be required to contribute financially, depending on the circumstances and this is normally dealt with by the Child Maintenance Service.
If cohabitating and we split up, what happens to personal possessions?
It's important to figure out who owns what and who gets to keep things. If one person makes more money, they might be better able to buy new things after the breakup. Also, if someone brings a valuable item into the relationship, you will need to decide how to handle it if you split up. This can all be written and agreed in the cohabitation agreement.
What are the disadvantages of living together?
A big disadvantage of cohabitation is that you don't have the same automatic legal protections as married couples. Having a legally recognised Cohabitation Agreement or Living Together Agreement from the start can help with this. Difficulties can arise from matters such as inheritance, the availability of a partner's pension, or the power to make medical decisions for your partner.
If either myself or my partner sought enforcement for a cohabitation agreement, would the proceedings take place in a family court or a conventional civil court?
The answer would depend on the jurisdiction and the nature of the issues involved. In many cases, matters related to the enforcement of a cohabitation agreement, especially those concerning property or family-related issues, might be addressed in a family court. However, it's essential to consult with legal professionals in your specific jurisdiction to get accurate information.
What happens if my partner dies during cohabitation?
In the event of your partner's death during cohabitation, how assets are handled depends on factors like property ownership (joint tenancy or tenants in common), whether there's a will, beneficiary designations on accounts, the existence of a cohabitation agreement, and shared debts. Consult legal and financial professionals for specific advice to protect your interests.
If you are intending to cohabit as an unmarried couple or a couple not in a civil partnership, it is also recommended to make a legally binding will.
It's crucial to seek legal advice tailored to your specific situation. Cohabiting couples should be aware that they don't have the same automatic legal protections as married couples, and making clear agreements, possibly through legal documentation, can help avoid complications in case of a separation.
Our experienced family lawyers are able to tailor a cohabitation agreement to your individual needs, contact Susan Davies for expert advice on 01827 317070 or sdavies@pickerings-solicitors.com
