What Is a Cohabitation Agreement?
Many couples choose to live together without getting married. They often go on to settle down and start a family without exchanging marital vows.
But although their cohabitation may be no different from that of a husband and wife, their legal rights are markedly different.
A cohabitation agreement can go some way to offsetting the absence of rights afforded by marriage.
In this article, we’ll explore everything you should know before considering entering into a living together agreement.
What Is a Cohabitation Agreement & Why Should I Get One?
A cohabitation agreement (sometimes known as ‘no-nups’ or a ‘living together agreement’) essentially sets out the financial arrangements of couples living together who are not married.
It will generally list the individual assets which belong to each party, as well as any shared assets and debts.
Crucially, it will also specify the intentions of how assets should be divided in case the couple splits up. The primary purpose of a cohabitation agreement is to prevent disputes from arising if the relationship breaks down.
Are Cohabitation Agreements legally binding in the UK?
Cohabitation agreements are not legally binding in the sense that courts must uphold them, however, similarly to prenuptial agreements, the courts will consider them as part of any application.
You might be thinking, ‘what is the point in getting one if they aren’t strictly legally binding’, however, put simply, if the agreement is drafted correctly then it will be legally ‘enforceable’.
But in order to have legal validity, it is vital that the agreement is drafted and executed properly as a deed.
What can be included within a cohabitation agreement?
There is a range of issues that can be specified in a cohabitation agreement, mainly involving financial affairs. Some of the points can include:
- Who owns which assets – and what are the shared assets (if any)
- How should any assets be divided in the event of a breakup
- How should expenses be shared whilst cohabiting
- Who is responsible for any household debts
- What are the financial responsibilities of each party regarding any children
- How should the shared home be dealt with if the couple separates (eg should the house be put up for sale and the proceeds divided)
Cohabitation agreements can also include provisions regarding what should happen to certain assets in the event of the death of either party.
However, the best way to specify any intentions regarding the distribution of assets following one’s death is best dealt with by drawing up a will.
Once a cohabitation agreement is in place, it should be reviewed at regular intervals, especially if there have been any significant life events such as the birth of a child.
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Why do you need a cohabitation agreement?
The law in the UK currently does not afford any financial protection to people cohabiting unless they are married.
If a non-marital relationship breaks down, this can leave one party completely destitute if they have no assets of their own.
A cohabitation agreement can go some way to providing cohabiting couples with some form of legal cover in the event that they split up.
Rights of married couples vs non-married cohabitees
There is no such thing as ‘common law marriage’ despite the belief of many to the contrary.
Even if an unmarried couple lives together for many years and has children, they will not acquire any of the legal rights afforded to their married counterparts.
Unlike divorce where both parties are legally entitled to claim a share of all matrimonial assets, irrespective of who bought what, non-married couples who go through a breakup cannot claim anything which belongs to the other party.
For example, if they have been living in a house that is solely owned by one party, the other party will not be able to claim a share of the equity in the property.
NB: The Cohabitation Rights Bill is currently making its way through Parliament. If this becomes law, it could change the situation regarding the legal rights of cohabitees.
Requirements to make the agreement enforceable
There are various conditions that must be met to make a cohabitation legally enforceable, namely:
- Both parties need to enter into the agreement freely and voluntarily.
- The agreement must be set out in the form of a deed and signed by each party in the presence of witnesses.
- Each party should receive independent legal advice on the agreement.