The Benefits of a Cohabitation Agreement | Kew Law

Many people in England and Wales, and across the UK, believe that common law marriage is a legal status afforded to couples in a committed relationship who cohabit (live together). Research studies produced by Universities and Parliament have shown that at least 49% of couples believe in common law marriage.

Sadly, there is no such legal status that exists in the England and Wales jurisdiction. Couples who live together, unmarried, do not have rights to each other’s assets, such as income, pensions and savings, and even each other’s estates in death, in the same way that legally married and civil-partnered couples do. It is particularly important to note this distinction if you have entered into a religious marriage which has not been legally registered.

There is also the issue of whether you may have a legal or beneficial interest in the ownership of the property you and your partner live in, or if you want to protect the ownership of your property from claims in the possible event of a separation. In the latter case, if you own a property and allow your partner, who is not a joint legal owner, to live with you, they may accrue a beneficial interest in your property. The choice of living together, but not being married, can therefore create unintended consequences.

If you cohabit with your partner, and then separate, you may only be able to pursue a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Such claims are limited to property that you may own with your partner, or otherwise prove you have a beneficial interest in, as a result of your relationship. Pursuing these claims can be costly, as the law in this area is governed by the Civil Procedure Rules, which means the successful party can have their legal costs repaid to them. This differs to the Family Procedure Rules, which governs matrimonial and children disputes, where each party must simply meet their own legal costs when going through legal proceedings. There is an exception for cohabiting couples who have children together, who may seek remedy under Schedule 1 of the Children Act 1989, whereby financial remedy orders regarding property and maintenance can be made for the benefit of any children of the relationship.

There is a solution available for cohabiting couples, if you both take steps to plan ahead and take early legal advice whilst you are in a relationship. Family lawyers are able to advise on how best to plan for any possible breakdown of your relationship, and also plan how you will each treat your respective assets for the duration of your relationship. A cohabitation agreement can be drawn up to reflect your mutual wishes on how you wish for assets, liabilities, properties and also any matters concerning any children of your relationship, to be dealt with during your cohabitation and in the event of a separation.

A cohabitation agreement can be viewed in a similar way to nuptial agreements, which are available for married couples. Both types of agreements require the parties to have independent legal advice, as well as plan for the present, and in the event there is a separation.

You can outline within a cohabitation agreement, for instance, if a property is intended to be a joint asset, or remain a separate asset of one party. You can agree how to divide belongings; joint bank accounts; and any other relevant considerations. You can even agree how contributions to the household bills are made. Provision can be made within the cohabitation agreement to review the document at key life stages, such as having or adopting children; any illness affecting the parties; or otherwise, regular review every 5 years.

By entering into a cohabitation agreement, this provides clarity for the parties in the relationship, for both the present and a possible future. It also helps reduce, for example, the likelihood of having to make a claim in the Civil Court to prove an interest in the property (if you are the non-legal owner), or pursue financial remedy in the Family Court for the benefit of your children, which can be costly, time-consuming, and all-together a stressful endeavour.

How can we assist you

Kew Law can advise you and deal with the preparation of a cohabitation agreement, to make sure the document exactly reflects your wishes. Please contact us on 0800 987 8156 to discuss the matter with one of our specialist family solicitors.

For more information check out our other helpful guide: What Is A Cohabitation Agreement? | Is It Legally Binding In The UK? – Kew Law