The importance of cohabitation agreements

Over the last decade or so it has become increasingly common for couples to live together without getting married, but such an arrangement provides neither partner with any legal rights should they separate. So a cohabitation agreement is vital in order to provide adequate legal protection.

What is the law regarding a common law husband and wife?

In English law there is no such definition as a common law spouse; it is simply a myth. Simply living with somebody or cohabiting offers no legal rights to either party. When a married couple divorces or a civil partnership is dissolved, each party has a legal right to a share of the assets and maintenance, and the final outcome is decided by the court. This does not happen for couples who cohabit.

I have lived with my partner for over 30 years in his house, but now he wants me to leave. What rights do I have?

Unfortunately, if you do not have a cohabitation agreement that spells out your rights, then you simply don’t have any. You have no rights over the property or cannot receive any form of maintenance, even if you have been financially supported in the relationship.  

The house is in my spouse’s name but I have paid most of the mortgage. Do I have a claim?

It is possible, though not certain, that you could make a claim in the court, but the process would be very expensive and there is no guarantee of a satisfactory outcome. If you cannot afford the costs, there is no other course of action to take.

What about if the house is in our joint names?

If the house is in both of your names, then each of you has a 50% share in its value. It is irrelevant who has paid the mortgage.

What is the alternative to getting married or a civil partnership?

The only way to get legal protection other than through marriage or civil partnership is through a cohabitation agreement.

What is a cohabitation agreement?

A cohabitation agreement is a way of providing legal protection to individuals who are cohabiting or are intending to cohabit. It covers how the property and its contents, personal belongings and assets should be divided should you and your partner split up. If you have children, then it will also detail how they will be supported and maintained after a separation.

The agreement might also include how your finances will be handled while you are living together, for instance your contributions towards the mortgage and general household bills.

Is a cohabitation agreement legally binding?

Yes, cohabitation agreements are legally binding if they are drawn up correctly. For instance it is essential that you and your partner each receive independent legal advice. Neither you nor your partner should be coerced into signing the agreement.

How do we put a cohabitation agreement together?

The first thing to do is to decide what you would like to happen to your assets and, if you have any, your children should you spilt up. You must both receive independent legal advice otherwise the agreement will not stand up in the court. You will need to consult a solicitor who will guide you through the process and help you draw up the agreement.

Generally the agreement is drawn up by one partner and his or her solicitor and it is then presented to the other partner who must receive independent advice before signing it.

Do I need a solicitor or can we just draft our own agreement?

You can draw up the agreement yourselves, but it is essential that you receive independent legal advice to ensure it is legally binding. However, the agreement also needs to be foolproof so you are strongly advised to consult with a solicitor from the start. Fighting or defending an incorrectly constructed cohabitation agreement in the court can be very costly.

We recommend that you speak to one of our specialist QualitySolicitors who is experienced in family law.

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