As a cohabiting heterosexual or same sex couple you don’t have the same legal rights and responsibilities as married couples or couples in civil partnerships. The breakdown of your relationship can prove even more complicated when it comes to legal matters.
Our Family law team can help you with a cohabitation agreement to minimise the complications and ensure you are legally protected should your relationship breakdown or your partner die.
In what circumstances should you consider a cohabitation agreement?
- If there are assets belonging to you acquired prior to the relationship
- Where property, particularly a home, belongs to you and is to be shared with your partner
- If your parents have given you property or contributed to the purchase of your property
- If it is anticipated that work will be done on your property
- If you are planning on buying a property together
Is cohabitation recognised by law?
Unfortunately as a cohabitating couple you are not protected by law in England and Wales as your relationship is not recognised as a legal entity, regardless of whether you have children together. As a result, the problems arising from lack of legal recognition will only emerge on the breakdown of the relationship or when one of you dies. You will have to rely upon land law and complex trust law to determine any dispute as to the ownership of property.
How can we protect ourselves?
As with most things in life it’s difficult to predict if and when your relationship will end, however in the absence of legal protection, you would be wise to consider taking pre-emptive steps to deal with the issues that may arise if the relationship breaks down.
A cohabitation agreement can include details of the ownership of real and personal property and other assets and how they will be divided, if appropriate, should you separate. The agreement must conform to the general law of contract in order for the agreement to be enforceable. Therefore, the agreement must:
- Show that the parties intend to create legal relations
- Be signed as a deed
- Be clear and unambiguous
- Include nothing about the circumstances in which the agreement was entered into which could lead to it being set aside, e.g. duress, undue influence or misrepresentation
It’s also important to ensure that the terms of the agreement are reasonable and properly drafted, which our team of lawyers can help you with.
Other factors to remember when preparing a cohabitation agreement are:
- Both of you should receive separate/independent legal advice
- Both of you should give full and frank financial disclosure
- You will need to provide full details of your financial circumstances including land/property; insurance policies; investments; bank accounts; pensions; chattels, e.g. house contents & personal items of value
- The agreement should be reviewed on a regular basis to ensure that it remains relevant in changed circumstances
- If you decide to marry, the cohabitation agreement will not be relevant. You should then consider entering into a prenuptial agreement.
Ideally the agreement should only contain details of land, property and money, with other issues such as day to day arrangements detailed in a separate informal agreement.
Will a cohabitation agreement protect my interest in our home?
If you own property together you can get additional protection by using a deed of trust. This defines what interests each of you has in the property, which is really helpful if contributions to the property have been unequal.
Will we be protected if one of us dies?
As cohabitants don’t benefit under the rules that govern intestacy when one partner dies, it’s important to take appropriate steps if you wish to benefit on the death of your partner.
The simplest way to do this is to make a will, and to hold property in joint names, so that on death the survivor automatically inherits the property. Legislation does exist to enable the surviving cohabitant to make an application to court for financial provision from the deceased partners’ estate, but only to those who have been cohabiting for at least two years. Also, the court will only deal with cases where the deceased failed to make reasonable financial provision.
What documents should be prepared?
- Cohabitation agreement
- Separate agreement for day to day issues
- Declaration of trust
The key to avoiding any uncertainty is openness and discussion at an early stage in your relationship. Be honest with your partner and explain any concerns you may have regarding your future financial security. By making provision for all eventualities you can make your relationship stronger not weaker in the long term.