Family law

The importance of cohabitation agreements

Cohabiting couples often think they have the protection of being a 'common law' husband or wife. The fact is that if you aren't married or in a civil partnership, you have virtually no protection in law and you may need a cohabitation agreement to protect your future.

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What are our rights as a cohabiting couple?

A large number of people believe that when you've lived together for a few years, you become a 'common law' spouse, with the same rights as married people. The fact is that if you aren't married or in a civil partnership, the law doesn't accord cohabiting couples any specific rights over property, pensions or savings as examples.

This means that if, for example, one of you owns the property you live in while you are together, the other party has no clear legal claim on the property if the relationship ends, even if they have contributed equally to household costs for many years. The same applies to pensions, savings, and investments, as these will generally remain the property of the person whose name they are in.

What if we've had children while cohabiting?

The law treats arrangements for children equally, the same whether you are married, cohabiting, or in a civil partnership. So if you have children together, the partner that becomes the resident parent will usually be entitled to receive child maintenance from the other parent, and it's possible they will even retain the right to stay in the family home until any children reach the age of 18, even if the non-resident parent owns the property.

That's because the law puts the rights and wellbeing of children above all else in cases of parental separation.

A parent can also have parental responsibility even if they are not married. Unmarried mothers automatically have parental responsibility, but unmarried fathers only have parental responsibility under certain circumstances.

Can I get spousal support if we break up?

Unfortunately, the legal position with regards to spousal support is that while married couples have a financial responsibility to one another when they separate or divorce, cohabiting couples do not. If you have children together, the other party will almost certainly be liable to pay child maintenance to contribute towards the costs of the children; but this isn't the same thing as getting spousal support or maintenance for your own benefit.

What are my rights if my partner dies without a will?

Unfortunately, if your partner in cohabitation dies without leaving a will, you have no automatic right to benefit from their estate. A surviving unmarried partner may attempt to claim from their late partner's estate using the Inheritance (Provision for family and Dependants) Act 1975.

However, there may well be other claims on the late partner's estate, and the court will be obliged to consider all claims before reaching a decision, which may be a lengthy, expensive and uncertain process.

What rights does a cohabitation agreement give me?

While it might not seem like the most romantic thing to do when you decide to live together, drawing up a cohabitation agreement actually shows you care about having fairness and a secure future for your partner.

It means that in the event your relationship ends, you will both know exactly what you are entitled to in terms of finances and property, not to mention all of the other things that can cause conflict when a relationship ends. Typically, cohabitation agreements should cover things such as:

  • The legal shares you both have in any property
  • How any shared businesses will be dealt with
  • How debts will be settled
  • How shared savings will be split
  • How mortgage and other property costs will be paid
  • How any property acquired during the relationship will be split
  • Who has custody of any family pets
  • How adjustments to pension schemes will be made
  • What temporary arrangements will be put in place while you deal with your separation

It's also worth mentioning that while judges are usually happy to be guided by them, cohabitation agreements aren't absolutely binding in law. So to protect you both as fully as possible, our family law experts are also able to draw your cohabitation agreement up as a formal legal deed if you wish to make it more formal.

Case studies

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A husband contacted our team to help resolve the financial aspect of his divorce.

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A father contacted our team after his daughter was taken to Egypt without his consent.

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