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Cohabitation Agreements: Fail to Prepare, Prepare to Fail!

View profile for Louise Jones
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For many couples, moving in together is the natural step forward. Be it rented accommodation or a jointly owned property, living together is a wise idea for couples looking to commit without the costs and legal implications of a marriage. However, simply owning property or living with your partner does not grant you the same legal rights as a married couple. All too often, separating couples find themselves in an asset-related dispute, having lived together for years without considering the implications of a potential breakdown.

This usually happens as a result of couples assuming their time spent cohabiting means they have entered into ‘common law marriage’. But what is common law marriage, and what rights does it come with? Though it’s likely you’ve heard the term thrown around, the truth behind the common law marriage is that it simply does not exist. No matter how long you have been living with your partner, your rights will remain the same as that of an unmarried couple. However, when a study was conducted in 2008 to decipher how popular the common law myth was, results found that 51% of respondents believed cohabitants shared the same rights as a married couple. As experts in family law, we’ve taken it upon ourselves to bust this myth wide open to clarify the rights of cohabitants and how to protect them.

So, what rights do unmarried couples have?
In the eventuality of separation, the division of assets will be quite different for a married couple and a cohabiting unmarried couple. Though both you and your partner may have spent a great deal of time and money building your life together, your assets cannot count as matrimonial unless you are married. In other words, anything you have purchased in your name legally belongs to you and vice versa.

What happens to our property?
Without a cohabitation agreement or a marriage to legally tie you and your partner together, your options in dividing the family home will be limited. If you purchased the house together as joint tenants, either you or your partner will be able to apply for a court order to have the profits of the house once sold divided equally between you. For tenants in common, the protocol will be somewhat similar. Both parties will generally sell their shares of the property. However, if you and your partner have never discussed a plan for a potential separation, this is an area where dispute becomes very likely. What if you want to remain in the property as it suits your lifestyle, and have no plans to relocate? What if your partner feels the same? 

What if it was never in my name?
If the property is solely in either your name or your partner’s name, an investigation will have to be undertaken by a court to decide how much of a financial stake the other party had in the family home e.g through mortgage repayments or utility bills.

However, if there is no monetary contribution, it will be very difficult for a court to divide the profits equally as it will rely on the intangible contribution you or your partner has made during your time together. This is particularly problematic, as a court will not have any physical evidence of the arrangement you had both agreed on – and if there is a dispute, it will literally be your word against theirs. This can occur when one person moves into their partners home, but no agreement has been drawn up to specify arrangements for a potential break up. If you are in this situation, separation could mean you leave with no financial help and no property.

Will I have to pay maintenance if we split up?
If you and your partner decide to separate, neither you nor your partner will be entitled to receiving maintenance payments from each other. However, if you have a child with the person you were living with, they will be obliged to make maintenance payments regardless of your marital status.

What happens to the children?
When a cohabiting couple chooses to separate, decisions about who the children should live with will be based on the child’s best interests as opposed to who has parental responsibility, and will be made independently by a court. This is why it’s critical for an agreement to be reached between parents at the earliest possible stage so that parents as opposed to a court can decide on their child’s future.

What should I do to protect my assets?
As a cohabiting couple, the best defence against a potential separation it a cohabitation agreement. A cohabitation agreement is a legal document that defines the rights of both parties in the relationship, stating clearly their arrangements regarding financial assets, children, debts and personal possessions.

While cohabitation agreements aren’t technically legally binding, they tend to act as a guideline for courts when a separating couple is going through the process of asset division. If both you and your partner have reached a reasonable agreement regarding financial assets, there is no reason why distribution should not be carried out in accordance to your cohabitation agreement.         

We know that discussing the outcome of a potential split is not likely to be a conversation you’re desperate to have with your partner, especially if you’ve just moved in together. However, assuming that everything will work out can be a careless move. None of us know what the future holds, so a little bit of planning and preparation can only benefit you. Making a cohabitation agreement is the only way to ensure that your assets are safeguarded and your interests are protected in the eventuality of a split: you may not want to talk about it, but you may just have to.

Do I need a solicitor to help us draft a cohabitation agreement?
If you are not familiar with the process of drafting a cohabitation agreement, seeking the help of a specialist family law solicitor will ensure that you’ve got everything covered and no stone is left unturned. A cohabitation agreement should act as a safety net for you as a couple and reassure you that your finances aren’t solely dependent on the survival of your relationship. At Talbots Law, we’ve helped a vast number of clients to draft agreements, assisting with negotiation as well as the creation of the document itself. Get in touch with a member of our team today for more information or to arrange an appointment.