Ruth Jackson, a barrister in the family law department at Forrester Sylvester Mackett, responds to some frequently-asked questions about cohabitation agreements.
Should I have a cohabitation agreement?
Most people are aware that, if your marriage or civil partnership should break down, the parties will continue to have financial responsibilities for each other. And many people are also aware that such financial responsibilities are very different if you were not married to your partner.
But what about before the relationship begins? Are there any steps you can take to protect yourself before the relationship breaks down?
What is a cohabitation agreement?
A cohabitation agreement is a written document setting out the agreement reached by two (or more) people, who have decided to start living together. It sets out the arrangements during, and at the end of, the relationship.
Who would benefit from a cohabitation agreement?
A couple who have decided that they do not want to get married or enter into a civil partnership, or people who have decided to share accommodation, perhaps for financial reasons.
What should a cohabitation agreement include?
A cohabitation agreement will usually record the agreement about the ownership of land and of personal belongings both now and in the future, as well as the payment of bills and living expenses during the relationship.
If you and your cohabiting partner are buying property together, you should already have decided whether you will hold that property as joint tenants, or as tenants in common. If you hold the property as tenants in common, your conveyancer will advise you as to how the shares of the property are recorded.
But a cohabitation agreement can include a lot more, for example:
- Who is going to pay the mortgage payments?
- Who is going to pay the utility bills?
- When will the property be sold?
- What will happen if you cannot agree whether the property needs to be sold?
- Will there be any special arrangements for the sale?
- What if you one of you wants to buy out the other?
Although you may wish to record your agreement about your financial responsibilities for your children, remember that you cannot agree not to take responsibility at the end of relationship. Whether you stay together as a couple or not, you will continue to be a parent.
Why might I need a cohabitation agreement?
The court can make decisions about property at the end of a cohabitating relationship. But such court applications are long, costly and stressful, and the outcome cannot be guaranteed. By setting out in advance what will happen if the relationship should end, you have saved yourself the time, expense, anxiety and uncertainty of contested court proceedings.
What could go wrong?
The law concerning cohabitation and the breakdown of cohabitating relationships is changing. We do not know how the law will stand in the future. You may need to review your cohabitation agreement during the course of your relationship.
Some people find it difficult to talk about money, property and capital assets at the start of a new relationship. They fear that by discussing with their new partner the arrangements should the relationship break down, they are showing a lack of commitment to that relationship.
How can I protect myself?
Before entering into a cohabitation agreement, both parties should take independent legal advice. At the very least, the parties should acknowledge that they had the opportunity to take such legal advice. This is particularly important if you are waiving a possible future claim to property or money.
You do not have to have a cohabitation agreement in place before you start living together. But it is very important that neither of you have been put under pressure to agree and sign such a document.
How do I find out more?
If you would like to discuss whether a cohabitation agreement would assist you, or to explore the options available to you, please telephone 01249 444300 to arrange a free 30-minute consultation.