The benefits of a cohabitation agreement for unmarried couples

Long gone are the days when the majority of young couples would live at home with their respective parents until such time as they were married. Even after they were married, many couples continued to live under the roof of one or the other sets of parents.

But, since then, the cultural, economic and legal landscape has changed. Cohabiting before marriage, or even instead of marriage, is no longer considered to be scandalous. In fact, and according to the Office of National Statistics, nearly a quarter of all couples in the UK cohabit without getting married.

But sharing a home brings with it financial responsibilities. A marriage contract addresses those but if there is no marriage contract, then the next best thing is a cohabitation agreement.

What is a cohabitation agreement?

A cohabitation agreement is a form of contract that sets out each party’s respective rights and responsibilities in relation to the home they share or propose to share. It is the only way to protect the rights of cohabitees. Similarly, it can cover financial arrangements between them both while they live together and even arrangements that need to be made if either party wants to terminate the relationship or the couple decides they no longer wish to live together.

As with all contracts, they are enforceable by law if the need arises. However, going to court is a gruelling and expensive business, even for the winning party, so it is really best avoided if at all possible. Ideally, the cohabitation agreement obviates the likelihood of costly and protracted disputes by setting things out clearly and unambiguously from the outset.

What things can be included in a cohabitation agreement?

There are no set rules for what a cohabitation agreement should cover. However, the most common issues are property, finances, children (if any) and personal belongings and chattels.

If the cohabitation home is rented, then the agreement can set out each party’s contribution to the rent and other outgoings which may include utility bills, council tax and internet fees. If the property is owned by one party, then the agreement can set out contributions to be made by the other party to the mortgage (if applicable), the outgoings and also any repair and maintenance costs. If the property is co-owned, or the couple is in the process of buying a home together, then the respective contributions can be specified.

As far as finances are concerned, each party can specify shares of any bank accounts, especially joint accounts, pensions, savings and other assets. One party can also agree to give the other access to a pension pot which may be of special importance in cohabitation agreements for older couples.

The parties can also prepare schedules of their respective personal belongings and chattels, which can be updated as the parties acquire more personal belongings over time. Once it has been agreed who owns what, this should avoid any screaming matches about who gets to keep the Ed Sheeran CD collection if the couple ever splits up.

A cohabitation agreement can also cover arrangements for the care of children, be they the children of one party or a child of the couple. Bear in mind that if one party has children, the other party has no parental rights at all. So, any rights or responsibilities can only be conferred upon the non-parent by means of an agreement.

Another matter that can be addressed in cohabitation agreements is next-of-kin authorisation in the event of a medical emergency. However, cohabitees have very few rights upon death.

Is a cohabitation agreement recognised by law?

Yes, to the extent that it is a contract and all contracts are legally enforceable in the event that either party is in breach. However, as with all contracts, it is only valid if it is not entered into as a result of fraud, duress or mistake. If, for example, one party has lied about their assets or circumstances, then the agreement could be rendered unenforceable.

Likewise, if one party has been pressured into entering into the agreement when they did not really want to, this is duress and the contract will be void. It’s for this reason that each party to the agreement should be separately advised before entering into the agreement.

Furthermore, even if a valid cohabitation agreement is signed, it should be updated in the event of a significant change in circumstances. This could be, for example, if the couple have a child together after the agreement was signed or the parties decide to buy a property jointly after initially renting.

If a cohabiting couple decides to get married, then the cohabitation agreement should be upgraded to a pre-nuptial agreement.

In 2016, the Law Commission published a report on ‘Common Law Marriage and Cohabitation’, which included information on the lack of legal status for cohabiting couples in relation to property and family. However, in 2022, the UK government rejected a proposed cohabitation rights bill.

If you and your partner intend to cohabit, then a cohabitation agreement is highly advisable and you should seek advice and assistance from an experienced solicitor who will be able to provide guidance and draw up a suitable document.

For further information and trusted legal advice regarding matters of family law or divorce, get in touch with our Resolution-accredited divorce lawyers in London at Carlsons Solicitors.