Cohabitation Agreements explained

Private Law Team with Natalie Thomas - Associate Solicitor - DJM Solicitors

We often hear the term ‘common law spouse’, however that is not a legal status. You are either married (or in a civil partnership) or not.

If a relationship breaks down, being a ‘common law’ wife or husband does not give you the right to claim against your ex-partner for maintenance or a share of their assets. However, it may be possible for a parent to make a claim on behalf of a child they continue to look after.

When couples are intending to co-habit then we advise them to consider preparing a cohabitation agreement. This agreement should provide financial protection for both parties to increase their sense of security and happiness within the relationship, and sadly in the event of the relationship breaking down.

Financial issues are key to a cohabitation agreement. It should include:

  • What rights each partner has regarding property you live in, consideration will be given as to who owns the property or contributed more to its purchase price/mortgage,
  • Who owns other assets/ chattels/ furniture, savings, investments,
  • Who will continue to own the assets in the event of separation,
  • Who is responsible for any debts.
  • How expenses will be shared while you live together.
  • Where you have children, either jointly or with a previous partner, the cohabitation agreement should also address this.

Some aspects may also need to be supported by legal documentation: for example, to ensure that your partner inherits in the event of your death, you should prepare Wills.

A cohabitation agreement is a contract between you both. To be legally enforceable, it must have been made with the intention of having legal force – the agreement can say so. The document should detail what you are agreeing. It must also be ‘executed as a deed’, signed in the presence of witnesses.

Even so, a cohabitation agreement may not be enforceable if it is unfair. To maximise the chances that it is enforceable, you and your partner should both take independent legal advice. You must also be open about your individual financial positions when you enter into the agreement.

Finally, you should note that the agreement will not overrule other legal rights and requirements. This is particularly the case if children are involved.

If you get married (or register a civil partnership), your cohabitation agreement might be taken into account by the court if you later divorce (or dissolve your civil partnership).

A better solution is for the cohabitation agreement to specifically state that it automatically comes to an end if you get married. If, at that time, you want to have a similar agreement, you can draw up a prenuptial agreement.

It is good practice to review your cohabitation agreement every five years, or whenever there are any major changes in your circumstances – in particular, when a child is born.

If you wish to discuss this further then please contact us.

Douglas Jones Mercer – Solicitors

Chelston House, 103 Newton Road, Mumbles SA3 4BN 01792 304090

16 Axis Court, Mallard Way, Swansea Vale, SA7 0AJ 01792 650000





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