Over the years there has been much in the press about a possible change to the law which would deal with the breakup of cohabiting and unmarried couples and those not in a civil partnership. However, despite calls to action by Resolution, the organisation of family law practitioners who are committed to the constructive resolution of family disputes, there has been no political appetite for any such change. This leaves cohabiting couples in the position where they have no automatic legal rights if they separate. As such, there is a real risk of one of the couple being treated unfairly or even potentially left with nothing on the breakdown of what might have been a lengthy family relationship.
I am aware that many couples are under the impression that they are in a ‘common law marriage’ and that their rights would therefore be protected on separation. However, this is a myth. There is no such thing as a common law marriage in England and Wales. Couples who live together do not have the same legal rights as married couples or those in a civil partnership.
A cohabitation agreement allows a couple to set out in writing how financial matters are to be dealt with during the course of the relationship, and also what will happen if the relationship does break down in the future or if one of the couple dies. It can deal with financial matters, but it can also deal with proposed arrangements for any children too.
Often one of the couple will be in a financially stronger position than the other. I have seen many cases where one half of the couple has moved into a property owned by the other. In such a case, there is no automatic entitlement to a share of that property on separation, and regard would need to be had to the complex area of Trusts law, which is far from straightforward, and it can mean that costly and potentially risky litigation is needed to establish a share. All of this could be avoided if a cohabitation agreement is entered into.
A cohabitation agreement is a binding contract between the couple which would set out the agreement reached regarding the way in which property and other assets are to be dealt with. It can set out how bills and a mortgage are to be contributed to during the course of the relationship, so there is no ambiguity surrounding these important issues which could potentially be a source of dispute, putting pressure on the relationship unnecessarily.
The end of a relationship can be difficult enough without having the prospect of a fight over ‘who has what’ from your life together. This can be such an emotive issue, which causes increased hurt and acrimony at an already difficult time. If a cohabitation agreement is in place, it substantially reduces the potential for further hurt being caused and can prevent the need for legal intervention at that stage.
Although it’s not something we like to think about, when you are in a cohabiting relationship, you won’t automatically have rights if your partner dies, even if your relationship has lasted many years. A cohabitation agreement, in tandem with a will, can provide for your partner’s financial security on your death giving you the comfort of knowing that they are provided for after your days.
It makes sense to have a legal document which confirms the understanding and agreement of both parties, so that in the event of separation, everyone knows exactly what is expected and there are no nasty surprises. In the event that the relationship endures as you both hope, but one of you dies, then again matters are much more straightforward if there is a cohabitation agreement in place, meaning that the remaining partner has the time and space to grieve without worrying about their financial circumstances.
Wendy Hopkins Family Law Practice have expertise in preparing cohabitation agreements whether you are already living together or are just in the planning stages. Protect your future by contacting us to discuss whether a cohabitation agreement would be sensible for you and your partner.
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Author: Thea Hughes
Published: 02.03.23