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What is a cohabitation agreement?

By 15 November 2021News

Cohabitation has become an increasingly popular choice in recent decades. According to recent data from the Office for National Statistics, a startling 88 per cent of opposite sex couples now live together before tying the knot, an increase of 19 per cent in a little over 20 years. For some couples cohabitation means postponing that walk down the aisle or trip to the registry office – for others it means avoiding marriage altogether.

Quite why so many contemporary couples now delay or shy away from traditional marriage is a complex topic. Social attitudes and priorities have certainly changed and widespread misconceptions about the nature of cohabitation could well have played a role as well. Despite commonly held beliefs to the contrary, cohabitation has no solid legal status in England and Wales. There is no such thing as a “common law” husband or wife so if a relationship comes to an end before any marriage has taken place, the financially weaker party can find themselves in a very precarious position: they will have no automatic right to a share of the assets or maintenance, or to inherit property or a pension linked to the relationship following the death of a partner. This discovery has proved a shock to many.

The English family law system is built on a presumption of marriage and this remains the case despite long-running debates about limited legal rights for cohabitants.

There are a few options open to former cohabitants, depending on their individual circumstances. For example, if their partner passed away without leaving a will naming them as a beneficiary, they can argue in court that they do in fact have a right to a “reasonable’ share, under the Inheritance (Provision for Family and Dependants) Act 1975. But of course, there is no guarantee of success.

If you are living with a partner to whom you are not married, take stock of your circumstances as soon as you can. Seek legal advice and consider ways to protect your interests in the event of the relationship ending. One the most straightforward routes to doing so is a cohabitation agreement. As the name suggests, this is an agreement between a cohabiting couple which sets out precisely what will happen in the event their relationship ends. Typically, they specify which assets or property will go to which partner, clarify responsibility for any debt or mortgages and state whether or not one partner will pay the other a certain amount of personal or child maintenance in the event of a separation. This can save a great deal of expensive and stressful litigation.

By their nature cohabitation agreements are best suited to couples who are confident they will never enter a formal marriage or civil partnership but they also provide an effective way to protect the interests of couples who have merely postponed marriage in the event that the relationship comes to a premature end. For added security, in the event that you have significant assets cohabitation agreements can be combined with an updated will and a deed establishing property rights.

Preparing for the worst is never an easy process but always a sensible one.