English law does not afford cohabiting couples the same legal protection and rights as married couples. A cohabitation agreement is accordingly an essential consideration for unmarried couples.
Cohabiting couple families are, according to the Office for National Statistics, the fastest growing family type in the UK, having doubled in number over the last 10 years. Couple the statistics with the misconception of “common law husband and wife” and the result is an increasing number of people without legal protection should a relationship end.
Under English law there is no common law husband and wife status. The law does not recognise a cohabiting couple outside a marriage or civil partnership. If a relationship breaks down, a cohabitee has no right to claim against a partner for maintenance or a share of the family assets in the same way as married couples do, irrespective of the length of relationship and whether there are children involved.
A cohabitation agreement
A cohabitation agreement is a legally binding document regulating a couple’s affairs during and most importantly after any relationship. The agreement deals with money, property, children, assets and other arrangements. Its fundamental purpose is to clarify ownership, practicalities and logistics in the event of separation.
It may seem clinical and unromantic but a cohabitation agreement is a sensible way to ensure that in the event of heartache, an amicable separation can be achieved saving time, stress and legal fees! A cohabitation agreement provides clarity and certainty and may in fact add to the security of a relationship.
Each party should obtain independent legal advice in relation to the cohabitation agreement. It is a collaborative rather than contentious agreement. Prior to entering the agreement, it is important to have open and honest discussions about arrangements and finances. Any misrepresentation of your position, may invalidate the agreement.
A cohabitation agreement will typically include provisions dealing with:
- Ownership and division of assets
- Ownership of property and practicalities in the event of separation
- Division of belongings, savings, bank accounts, debts and joint purchases such as cars
- Childcare arrangements
- Life insurance
- Entitlement to pension
- Health insurance and any other benefits
- Provisions for review of the agreement on certain dates or after significant events such as having children, inheritance or starting a business
- The terms should remain confidential
A cohabitation agreement should not be seen as a set of “relationship rules”. Provisions dealing with responsibility for doing the housework should be left out and may undermine the certainty and purpose of the agreement. Your relationship may be in trouble if you need to call your lawyer every time the washing up isn’t done!
The risks of not having a cohabitation agreement
It is often the less financially secure partner who suffers when a cohabiting couple separates. Typically, this tends to be the woman who has stopped or scaled down work to raise children. Even if you have lived in your partner’s house for the last 25 years, have children together and have been financially supported throughout your relationship, if you do not have a cohabitation agreement expressing otherwise, you may have no entitlement to any interest in the family home or to receive any maintenance should your relationship end.
The lack of a cohabitation agreement can lead to confusion, misunderstanding and an expensive legal bill after separation.
It is generally accepted that the current legal position for cohabiting couples is far from ideal. However, no government has yet confirmed that it will consider changing the law to give cohabiting couples some basic legal rights. In the meantime, it is prudent for all cohabiting couples to protect their rights and assets through a cohabitation agreement.
Gepp & Sons Solicitors are one of the region’s leading law firms, providing clear legal advice on all aspects of family law for generations. Please contact our family team on 01245 228106 to speak to one of our team in confidence.
This is not legal advice; it is intended to provide information of general interest about current legal issues.