We are getting asked more about cohabitation agreements by couples who are moving in together

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Why do you need to have something in Writing?

Despite the relentless and dangerous myth of “common law marriage”, cohabitation has no real status in English law. The harsh reality is that if you break up with your partner you will have almost no automatic financial or property rights beyond child support, even if you have been together for years.

Last year we were informed that the number of couples choosing to live together has doubled over the last 16 years and that couples living together are just as likely to have children than those couples who choose to get married. There are currently over three million cohabiting couples in England and Wales and three quarters of those have children.

So what happens if you split up?

  1. Your ex doesn’t have to pay you any maintenance (other than child support) even if, for example, you have given up work to look after the children.
  2. If you rent your home and the tenancy is in your partner’s sole name you will not have an automatic right to stay there.
  3. If your partner owns your home in his/her sole name you do not have an automatic right to stay there.
  4. You have no automatic right to insist that your partner contributes towards the mortgage or rent if it is in your sole name.
  5. You will have no claim on your partner’s savings or pensions.
  6. You will only automatically be able to keep your own possessions.
  7. Depending on various factors if you are the father of your children you may not have automatic Parental Responsibility for them.
  8. You will need to decide who the children will live with and when and how they will see the other parent.
  9. You will need to think about who will pay child support and how much.

As you can see from the above the law treats couples who live together as two unrelated individuals – regardless of the length of the relationship.

There are legal provisions available to cohabitants but they exist within a patchy legal framework and are often confusing, illogical and unfair.

This issue, and what is effectively a lack of rights for cohabitants, has been reviewed by the Law Commission who put forward a set of recommendations going forward – but these were rejected by the government. The subject appears to have been put on the back burner for now. Any change in the law is therefore some way off despite there being constant calls for things to change by MPs and organisations such as Resolution who are committed to alternative methods of resolving relationship disputes.

What can you do in the meantime?

Couples living together should look to protect their positions by entering into a Cohabitation Agreement (also known as a Living Together Agreement). Although there is no guarantee that such an agreement will be legally binding it will have considerable evidential weight should it ever be referred to should the relationship breakdown.

Cohabitation Agreements can include details about property, mortgage payments, outgoings, debt liability and much more. They are an excellent way of agreeing the day-to-day financial aspects of your relationship and can protect you both from whatever might happen to your relationship in the future.

If you’re buying a property together it is vital that you decide how you are going to own the property, who pays what etc and make it clear in the documents that are drawn up beforehand. You can record these agreements in a document often refererd to as a Deed or Declaration of Trust.

If it’s too late to enter into a Cohabitation Agreement and you have already separated then it is important that you take early legal advice from a Resolution Family Lawyer.

Options such as Mediation and Collaborative Law can assist greatly in discussing the issues and reaching an agreement. If you cannot agree or reach an outcome then rather than going to court (which can be extremely costly and slow) Arbitration may provide a sensible resolution alternative as it involves a third party reviewing the case and imposing a decision.

 

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