When it comes to relationships, many couples in the UK are choosing to live together before getting married. This decision is often driven by factors such as cost-effectiveness and personal preferences, reflecting changing trends in society. However, what some couples may not be aware of is that they can still be protected under the law and have certain rights similar to those of married couples, even if they choose not to legally recognise their relationship.

In this article, we will explore the concept of cohabitation agreements, which provide legal protection and rights to cohabiting but unmarried partners. These agreements help dispel the myth that unmarried couples living together have no legal recourse. By understanding the importance and benefits of cohabitation agreements, couples can safeguard their interests and ensure a fair and secure cohabitation arrangement. Seeking advice from a family law solicitor is crucial in navigating the legal complexities and drafting a comprehensive cohabitation agreement that suits the unique needs and circumstances of each couple.

What is a cohabitation agreement?

In very simple words, a cohabitation agreement is an agreement that records arrangements between people who have chosen to live together, either as a couple or even otherwise. Precisely, the agreement records the rights and responsibilities of each party in relation to both the property they plan to live in, or are already living in, and also their finances. And this is both during the cohabitation period and thereafter, just in case they decide they don’t want to live together anymore. Now, each and every cohabitation agreement is a bit different as they are tailored based on the couple’s needs, but one thing all the agreements have in common is that they do record essential facts with regards to ownership of assets. The agreement must state clearly what will happen to their assets in case the relationship breaks down. Other things that can be covered under the agreement is how they would take care of kids after the breakup – in case they have them – and also how to handle the household bills, debts, and even things like pets in the event of a relationship breakdown. We also can’t forget to mention pensions, as well as next of kin rights.  

Do cohabiting couples have the same rights as married couples?

Now that you have seen what cohabitation covers, you may want to know if cohabitants get the same rights as married couples. And the answer is no, not all the rights. The thing is, despite what many people might believe, living together does not equal marriage when it comes to the rights of the couple since there are a number of rights married people enjoy but cohabitants don’t. Some of these rights include the following:

• Any form of claims that arises from financial contributions to the partner’s property
• Rights to child support
• Spousal maintenance
• Claim on their partner’s death, depending on the circumstances, of course.

All in all, from a general perspective, cohabitants with an agreement do enjoy quite a number of rights that married people do, but they certainly miss out on a number of crucial rights.

Is a cohabitation agreement legally binding?

In the past, cohabitation agreements were deemed to promote sexual relations outside marriage, and so, they had always been historically void on the basis of public policy. But as time went by and social values continued to change, the law started to recognise cohabitations, especially where the couple want to regulate their financial as well as property affairs, and can now be enforceable in a court of law. As long as the agreement is lawful, it can be challenged in court on any contractual principle such as duress, fraud, undue influence, misrepresentation, or even mistake. So, when drafting a cohabitation, it must comply with all the contractual requirements so as to minimise its likelihood of being legally challenged with regards to its validity or enforceability.

What are some of the advantages of having a cohabitation agreement?

When you are in a relationship and have decided to move in with your partner, the thought of planning what would happen if the relationship was to break down may seem overly pessimistic and unromantic, and something you can’t even entertain in your mind. But the truth is, drafting a cohabitation agreement is very necessary and can provide valuable certainty and peace of mind, knowing that you are well protected, no matter what. Now, here is how you will benefit from the agreement;

• With a well-drafted cohabitation agreement, each partner is able to record their beneficial and legal interest in the property. This way, you will be able to significantly minimise the possibility of ownership dispute when the relationship and cohabitation come to an end, and it, in turn, will reduce the chances of costly litigation.
• With a cohabitation agreement in place, both you and your partner will have the freedom and flexibility to organise your financial affairs however you want during and probably after the cohabitation.
• If your previous relationship ended in a divorce, obviously you have seen how the splitting of assets can get. And when you enter into a new relationship, and let’s say a cohabitation arrangement, with your new partner, you will be more aware of how it can get if you are not prepared for the unfortunate event of a relationship breakdown. So, you will want a cohabitation agreement drafted in order to safeguard your finances.
• A cohabitation agreement will also help you avoid conflicts and misunderstandings regarding your rights and responsibilities as you stay together.

Who does the cohabitation agreement protect?

The cohabitation agreement can protect either of you or both of you, in the event your relationship breaks down. Technically, the cohabitation agreement operates the way a prenuptial agreement operates, where it records what will happen to the pre-owned assets, or how they will be shared if you are to break up. The agreement also informs the cohabitants of their responsibilities towards the utility bills, and it will also make it clear that the fact that both partners are contributing to the utility bills of the property, does not entitle them to a share of it should they break up. This is particularly true in cases where the property is registered under the other partner’s name.

If you jointly own the property that you are living in, if you break up, of course, technically, that property should be divided 50/50, regardless of whether one of you contributed more to the property or not. However, if you don’t put that under an agreement, it may not be enforceable in a court of law since it was just cohabitation. So in such a case, a cohabitation agreement will be vital as it will protect your share of the property.

Legal rights of cohabiting partners with children

When, as a cohabiting couple, you separate, there are actually legal provisions for any kids under 18 years of age. However though, there are no legal protections for you as the parent. Now, when you have kids in the relationship when dividing the family home, the court may apply the Children Act 1989 in determining who gets the home. This section of the law is so much focused on the child’s needs, as, other than the home, the judge will apply this law to determine the care and maintenance needs of the kids. Taking the financial situation of each parent into consideration, the court may order maintenance payments to be made by the parent who is more financially stable, but only for the purpose of caring for the kids. That’s as far as it goes! What this means is that, once the child’s needs are fully met, there won’t be anything left for the parent, and so, the parent will have to take care of him/herself.

Also, if the court decides that one parent remains in the house with the kids, this order will only be valid until the youngest child reaches 18 years of age. After this, if the home is still registered and belongs to the other parent, ownership will revert back to him or her, and maintenance payments immediately cease at this point. All this means that the resident parent, or the parent who gave up his or her career to take care of the kids, could be left with nothing in the end. This is one of the aspects where cohabitation and marriage differ.

But you and your partner can come into some sort of agreement of what could happen even after the kids get to 18 so that you are not left without anything, and then make sure you get the cohabitation agreement signed by a family solicitor, recording this very agreement, for it to be legally enforceable.   

Can I draft my own cohabitation agreement?

Of course you can go on Google where you will find free cohabitation agreement templates, which will guide you into creating one. But even when you are creating your agreement, you must not forget about some crucial pre-contract conditions that you will have to meet if your agreement is to become legally enforceable. Of course, you can do your research thoroughly, but you will need to keep in mind that unless you draft it correctly, and make sure that you include specific legal clauses, it won’t be legally binding, and that means you will have done zero work. For instance, if you have beneficial interests in the property you are cohabiting, drafting an agreement from the internet wouldn’t be the smartest move, as you will need to seek legal advice before drafting it.

So, quite honestly, the question here shouldn’t be whether you can draft your own cohabitation agreement, it should be whether you should draft an agreement in the first place. Remember that you want a draft that can be admitted in court, and so, it is recommended that you hire a family solicitor to draft a professional agreement for you. After all, this could be the only you can ensure that the agreement can stand up to scrutiny whenever needed.    

When should a cohabitation agreement be drafted?

Basically, a cohabitation agreement can be drafted at any point in the relationship – and that means either when beginning cohabiting or after living together for a couple of years. It doesn’t matter! As a matter of fact, when it was created is not as important as how often it is updated. The thing is, as with any other legal document, it is always important to ensure that it is periodically reviewed, to ensure that it’s amended wherever and whenever necessary, of course, in line with any major events that may have occurred during the cohabitation tenure. These include events like buying a new property, having children, the financial status of one partner significantly changing, or where one has a beneficiary of an inheritance.  

How much will a cohabitation agreement cost?

The amount you will pay to obtain a cohabitation agreement that’s legally enforceable will depend on the complexity of your affairs as a couple. Some solicitors will do a lot of work, from the initial meetings to drafting the agreement, amending it whenever necessary, and also sign it. But there are other solicitors who are hired as legal advisers, which means their work is less. All this is determined based on how your situation is. So, some solicitors will charge the services on an hourly basis, while others will charge a flat rate. To be specific, a couple can pay anywhere between 750 GBP and 3000 GBP, or thereabout. But to be honest, while this may seem expensive to some, when you compare this price to that of settling the affairs in court, you will see that it’s fair, and completely worth it.

Can I modify a cohabitation agreement after it has been drafted and signed?

Yes, you can! In fact, it should be modified regularly, especially after the occurrence of major life events, or as the relationship between you two progresses. As we had mentioned earlier, things like the birth of children, serious illness and disability of a partner, redundancy, change of financial circumstance, or both of you getting married should be included in the cohabitation agreement whenever they occur, thereby keeping it updated and legally enforceable.  

Final thought

Even though cohabitation may not be on the same level as marriage or civil partnerships, with regards to the partners’ rights, during and after the divorce, it doesn’t stop people from doing it. This is why the government saw it necessary to bring some rights to cohabiting partners, which will be guaranteed in form of a cohabitation agreement. So, with a well-drafted agreement, you are able to protect your rights to specific assets that you own, such that even when the cohabitation comes to an end, at least you will still be able to carry on with your life. Also, with a cohabitation agreement, you will be able to spell out each partner’s responsibilities in the relationship, helping you avoid unnecessary conflicts.