CLM Solicitors - Private Services - Family - Fact Sheet

Increasingly more and more people are choosing to cohabit rather than marry or enter into a civil partnership. It is estimated that cohabiting heterosexual couples now make up 14% of all partnerships compared to just 5% in 1986.

There are a number of myths surrounding cohabitation:

common law marriage - There is no such thing in law.
that a certain length of cohabitation entitles people to rights in the other’s property – This is not true, cohabiting couples do not have any rights in the other’s property simply by virtue of living with them.

Cohabiting couples do not have any more legal protection or legal rights, than a brother and sister, or friends, who happen to live together. They certainly do not have the same rights as a married couple, or a couple who have entered into a civil partnership.

Cohabitation Agreements

It is highly advisable for all couples that are contemplating living together (whether heterosexual or homosexual) to enter into a cohabitation agreement. This is a document setting out the agreements between the parties, and what they intend their rights to be.

Cohabitation agreements are very useful for recording the intentions of both parties, providing certainty, protecting both party’s interests, and focusing each party’s minds on the implications of their actions.

Before entering into an agreement both parties will need to obtain independent legal advice, and need to understand that they will be legally bound by the agreement. They must also both be fully aware of the other party’s financial and other circumstances.

Cohabitation agreements become void upon marriage.

Contents of a Cohabitation Agreement

The agreement can include anything that the couple want it to, but will usually include the following:

Whether either of the parties has been married before, or has children from a previous relationship.
Who owns the property in which the couple is living. - If both parties own the property, it will state in what shares they own it. If only one party owns the property, it will state if the other party has any interest in it.
Who will pay for the outgoings on the property, and what effect (if any) this will have on other agreements.
Who will undertake the maintenance of the property, and how it will be paid for.
What each party already owns, or assets they may have, which they are bringing into the relationship.
Who owns the contents of the property, and what arrangements are to be made for contents acquired during the co-habitation.
What arrangements will be put in place if one party becomes pregnant.
Arrangements for any children.
How debts will be dealt with, and whose debts they are.
How disputes will be dealt with.
In what circumstances the co-habitation will cease.
What will happen if the relationship ends and cohabitation ceases.

What will happen if cohabitation ceases

The most important part of the cohabitation agreement is of course the arrangements that will be put in place if the cohabitation ceases. There is no legal process for a couple to follow when cohabitation ends, unlike a marriage where there is Divorce and ancillary relief. Because of this, often cohabitation can end in a very piecemeal and acrimonious way with neither party quite sure what is going on. It is therefore essential that a couple think about what they would want to happen, so that each has certainty and protection in the event of a breakup. Please see our 'Cohabitation Disputes' leaflet.

It is generally much easier to think about arrangements that need to be made if the relationship breaks down whilst the relationship is still flourishing, as it is far less emotional. If these arrangements are not thought about until the relationship ends then there is often a long and complicated battle.

This section of the agreement often includes arrangements for the following:

What will happen if one party decides to leave the property.
The property - can one party buy the other out, and if so how. Will the property simply be sold, and if so how will the proceeds of sale be divided.
Who will be responsible for the outgoings on the property while arrangements are put into place.
How will the contents be divided.
How will the debts be divided.
How will other assets, like savings accounts, be divided.
What arrangements are going to be made regarding the children (if any) both from previous relationships and of the relationship.

Time Scale

If the couple is in agreement to the contents of the agreement then it will only take a few weeks to draft the document, ensure both parties have independent legal advice, and arrange signatures. It will of course be longer if any negotiating needs to take place.