Many secular cohabiting couples do eventually marry, but some stick to their guns and resist formalising their marriage indefinitely. The problem with this approach is that family law has still not caught up with the huge social changes that have turned cohabitation into the norm: it still operates on the basis of marriage. This means that cohabitants, unlike their married friends, have very automatic legal rights in England and Wales, even if they have lived with their partners for many years, bought property together or even had children.
Putting a cohabitation agreement in writing
To mitigate the risks, family lawyers typically recommend a cohabitation agreement. This is a formal document concerning the practical and financial aspects of your relationship- both while you are together and in the event of your separation or the death of one party.
Exactly what should be included in each cohabitation agreement does, of course, depend on the couple’s individual circumstances – does one partner, for example, look after the home or children, or only work part time? It is fair to reflect a diminished ability to earn an income in the agreement, via a reasonable share of property or other assets if you split up.
Typically, however, cohabitation agreements include:
- What (if any) property rights are held by each party.
- Which party holds responsibility for particular debts.
- Whether one partner should receive the other’s pension in the event of their death (subject to the terms and conditions of the pension plan itself).
- Which possessions and assets the surviving partner should receive if the other passes away.
- Who will be responsible for which household expenses.
- Arrangements for children in the event of a divorce or separation.
Cohabitation agreements can also address tricky issues like ‘next of kin’ status if one partner becomes seriously ill. But, in most cases, they cannot effectively specify behaviour – for example, responsibility for particular household chores or childcare. This is because it is very difficult to address such matters in wording that would be legally enforceable. Instead, discussion and mutual goodwill are the ways to address such day-to-day expectations.
Considering the future
Cohabitation agreements are legally binding if properly drafted, so it is always sensible to seek the assistance of a family lawyer when compiling one. Note that cohabitation agreements do not necessarily imply a romantic relationship: they can be drawn up for anyone who lives under the same roof – for example, siblings or roommates. But their formality makes them best suited for long term committed relationships, and once completed and signed, a cohabitation agreement should remove much of the legal uncertainty and risks associated with those.