Info & Advice

How much detail should a cohabitation agreement include?

In just a few decades, moving in together as a couple without getting married has gone from a rarity to ordinary, everyday and entirely unexceptional. The only couples now likely rush straight into marriage in western countries are those from a very traditional or religious background.

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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.


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FAQs

We guide you through the basics of family law by answering some popular questions regarding divorce, financial issues and children disputes.

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Should we have an Agreement?

Being practical, the answer to that question is very often a firm YES! Answers to problems can be found elsewhere, but if there is a…

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Being practical, the answer to that question is very often a firm YES!

Answers to problems can be found elsewhere, but if there is a Living Together Agreement, properly considered, well-drafted and comprehensively dealing with all the aspects that the couple care about, then there is more certainty and less worry about ‘What if…?’

If people plan to marry, then they can make their agreement a Pre-Nuptial (‘before marriage’) one and if money is being introduced into their lives from relatives, especially as loans, then the financial interests of the third party can be agreed in such an agreement, avoiding arguments about liability for repayment, terms of loan or gift and particularly avoiding them needing to participate in any dispute later on.


We never married and now my ex wants half the house, what do I do?

Before we split up, we bought a house and we entered into a declaration of trust dealing with the ownership of the house. We never…

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Before we split up, we bought a house and we entered into a declaration of trust dealing with the ownership of the house. We never married and now my ex wants half the house. We agreed that they were only entitled to 30% of it and that is what the declaration of trust says. What now?

Firstly, you should pat yourself on the back for being sensible. A declaration of trust is one of the ways you can protect yourself when in a cohabiting relationship. The Declaration of Trust is a legally binding document which sets out the ownership of the property you bought together. The terms of that agreement should be followed, this means your ex should be entitled to 30%. If they want more they would need to go to court and apply (with a very good reason!) for more than 30%. It is very rare for the court to give someone more money than the declaration of trust says so this would only be successful in 1 case in a 1000.

If you cohabit with anyone else again, it might be a good idea to enter into a cohabitation agreement. This sets out the financial arrangements clearly so that if the relationship breaks down, you both know where you stand financially.


What about children?

We deal with children issues elsewhere and the most important thing to know is that married parents, mothers and some fathers have Parental Responsibility as…

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We deal with children issues elsewhere and the most important thing to know is that married parents, mothers and some fathers have Parental Responsibility as a matter of law.   That does not apply to children of the other partner and legal responsibility does not extend to parents’ partners, so without something in place, a parent-figure might have no legal standing.

Have a look at our section on children.


What about if one of us dies?

This is a complicated issue beyond the information we can provide here, but the particular circumstances of a family can be relevant to inheritance issues.  …

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This is a complicated issue beyond the information we can provide here, but the particular circumstances of a family can be relevant to inheritance issues.   In the absence of a Will, the laws of intestacy apply and the rights of a person only ‘living with’ somebody depend on property law, inheritance law and the terms of pension schemes and policies.

Rather than risk that lottery, it is usually better for couples living together to make Wills to say what should happen if they die.


What if we split up?

We put that as part of ‘Should we have an agreement?’ because the agreement can govern the arrangements and provide greater certainty, even if people…

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We put that as part of ‘Should we have an agreement?’ because the agreement can govern the arrangements and provide greater certainty, even if people are happily or tolerably, living together.   Agreements are not simply to say what should happen if people separate, but that is a useful aspect that can be brought in.  Who lives where and what happens about – a sale or buy-out can be dealt with in a Living Together Agreement.   Many of the provisions would follow on from ownership, financial and practical issues considered for inclusion.

‘A stich in time, saves nine’ and thinking about arrangements before things go wrong may even help that not happening.  If somebody shows themselves to be selfish and unreasonable when discussing arrangements for living together, it serves as a warning that may save a broken heart and/or financial disaster later on.  Often people are deflected by an appeal to ‘trust me’ but a little evidence of trustworthiness, such as reasoned discussion before commencing cohabitation can make that easier.

We trust that answers at least some of your questions and sets your thinking on a productive track.


Who owns what?

This is a big topic, but with informal living together arrangements, property law decides who owns what, so it is vitally important that ownership is…

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This is a big topic, but with informal living together arrangements, property law decides who owns what, so it is vitally important that ownership is properly recorded when a property is purchased.   Often property lawyers, don’t like to ask to many questions and often only want to know about auto-inheritance on death which determines whether they register it is as ‘beneficial joint tenancy’ (survivor inherits) or a ‘tenancy in common’ (no automatic inheritance).  The Land Registry proprietorship register says who owns the property and many people expect that the money they contributed or was given/borrowed from families will be respected, but that cannot be presumed.

Belongings are called ‘chattels’ in law and courts are very reluctant to spend time deciding on such things.   There is established law about objects and rights, but arguing or taking it to court is rarely productive.    Far better to have decided the principles to be applied before people split up.


Who pays for what?

Often people develop habits about how finances are run without much discussion or agreement. People have contracts with providers and the businesses get paid.  It…

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Often people develop habits about how finances are run without much discussion or agreement. People have contracts with providers and the businesses get paid.  It is between the people involved in the contract, unless there is some other law that applies, such as for Council Tax.

Far better to talk about such things and agree.

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