Sue Ellingham
Posted on 3 Jun 2021

What is a Cohabitation Agreement?

When a couple decides to move in together, most do so because of their strong feelings for each other which they hope will mature into a permanent and mutually fulfilling relationship. Figures show that many do although the percentage that achieves that hoped-for permanence is lower for those who are not married than for those who are.

It is the experience of many family lawyers that when a relationship outside marriage breaks down, one of the most frequently given explanations is that one of the partners did not feel the sense of security that has been expected. Most people now know that on the ending of a relationship outside marriage, the parties do not have the same automatic ‘rights’ that accrue to the parties to a failed marriage.

It is a cliche to repeat that there is no such legal status as a ‘common law marriage’ although the reminder may be useful. The fact that the partners have been together, even for a long time, gives neither party automatic legal protection and security, even if one of them is in a much weaker position, financial or otherwise than the other.

There are however steps that the parties can take in order to improve the position of each party in the event that their relationship breaks down.

Why get a cohabitation agreement?

Entering into a mutual cohabitation agreement is one of the ways in which the partners can, at any stage in the relationship, set out how they agree that important arrangements relating to property, finance, children, and the like should be implemented if the relationship were to come to an end. Such agreements should preferably be in writing (to avoid disagreement as what was agreed) although oral agreements are valid, even if more difficult to prove.

What is a cohabitation agreement?

A cohabitation agreement is a record of a formal acknowledgment, preferably in writing signed by both partners, of the way in which they both accept property and assets are owned by each of them and should be divided and their ongoing obligations, financial and otherwise, to one another and any children they have together.

A cohabitation agreement will, therefore, typically specify how, both during the relationship and on its ending (if that happens)

  • the property in which they live (if owned) is to be regarded as belonging
  • savings (whether in cash, shares or other investments, houses or other ‘bricks and mortar investments, pensions, etc.) are to be regarded as belonging
  • any obligation for maintenance to be paid by one party to the other and/or the children is to be formulated
  • other possessions (e.g cars, furniture, jewellery, pets, artwork, artifacts, etc.) should be regarded as belonging and divided on separation
  • an outline of arrangements for children (remembering that the details can only be finalised according to the interests of the children at the time of separation.

The advantages of a cohabitation agreement

  • The creation of clarity and certainty between the parties, both immediately and for the future which is of particular significance if one of the partners has an obvious ‘disadvantage’ over the other, such as a health problem which is likely to be long term, a lower earnings potential, etc.
  • The reduction of the risk of disagreement about the ownership of assets etc.

How to prepare a cohabitation agreement

It is not compulsory for the partners to take legal advice before entering into such an agreement and nor does the agreement have to be prepared by a lawyer.

It is important to say, however, that if both parties have taken legal advice and have had the opportunity to explain to an independent person their views and any anxieties which they have about the terms which are proposed, it makes it much more likely that the agreement will be upheld by the courts if there is a dispute at a later date.

Common areas for disagreement include the suggestion that one party was put under pressure to agree, there had been a failure by one of the parties to be frank about their financial position, risking the creation of an unfair balance on separation.

Can a cohabitation agreement be changed?

Yes. Few circumstances remain the same throughout life. If there are important changes, then an updated agreement can be prepared. This does not have to be a long document: it could be rather like a codicil to a will and just deal with the circumstances which have altered.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team.