Article reference: UK-IA-FAM01

How using a cohabitation agreement can give you security

Committing to a relationship and living together affects not only your lives but your money, possessions, children, and other important aspects of your future.

The law doesn't provide any special protection to a person leaving a relationship that is not marriage. Nor does someone who is not married have any "common-law" rights. So as two people living together unmarried, you are in a potentially much more delicate situation than a married couple would be if one of you is financially reliant on the other in some way.

Because of this, you should always consider whether if your relationship did break up, how likely it would be that you will both continue to be kind, reasonable and sensible to each other, and how assets would be split.

One way of protecting your money and possessions is to enter into a cohabitation agreement that sets out living arrangements during your relationship and division of assets should you break up. It is a very practical document that can cover as much or as little as you like.

What an agreement might cover

Ownership of the property you live in and repayment of any mortgage

If just one of you owns the house you live in, the other has no automatic right to stay if the relationship ends. That is the case even if the non-owner pays towards the mortgage or running costs. The only exception is if you have agreed otherwise in either a cohabitation agreement or a licence agreement to occupy the property.

If you are contributing to the mortgage and want your payments to be recognised as such, rather than as rent, then the starting point is to agree who owns what share of the property and whether the shares change over time. Then you need to consider what might happen in the future, and plan for what you would like to happen.

For example:

  • who should live in the property if one of you looks after children and does not work
  • what should happen if one of you becomes severely injured or even dies
  • what happens if your employment circumstances change and one of you cannot afford your contribution to the mortgage repayments

There is no exact list of what might happen or what should be the outcome in any situation. These are things you need to think about, agree on, and then record in writing.

If ownership changes, you may need to tell the Land Registry, or use a tenants in common agreement to define the ownership split.

Division of money, possessions and other assets

Some possessions are easy to divide. You can agree that any personal possessions you brought into the relationship - such as inherited paintings - are yours if you split.

More difficult is to decide how large, less easily divided assets (similar to a house) should be split. Assets like these might include life insurance policies or pensions, where one of you has contributed salary to savings while the other has used income to meet day to day requirements.

One solution, which Net Lawman's document provides, is a proposal for a graduated capital payment depending on the comparative wealth of both parties. You can decide exactly how it works under our framework.

Monthly maintenance

Even though you are not married, you can agree for one of you to pay the other monthly maintenance. There is great flexibility on the arrangement you can choose - much greater than if you are married.

Bear in mind that maintenance payments tie you together after you split. It might be preferable for you both if one partner gives the other a lump sum, or a graduated capital sum rather than an on-going payment. Certainly, this can be safer if the circumstances of the person paying maintenance change.

Children arrangements

Even if you don't have children now, you might in the future, so your agreement should consider them.

If the parents of a child are unmarried, then only the mother has any automatic rights in respect of the child. She alone will have parental responsibility for the child. However, since 1 December 2003 (s111 of the Adoption & Children Act 2002) it is now easier for an unmarried father to acquire similar rights. All he needs to do is to register the birth of the child with the mother.

An unmarried father can also acquire joint parental responsibility or even sole parental responsibility, by applying to the court for an order. He can apply for joint parental responsibility, a residence order (that the child live with him rather than his/her mother), or a contact order (that he should be entitled to see his child on a regular, specified basis).

A more immediate problem might arise if the parties fall out, and separate and fight over the children immediately. If it is clear that the children are suffering or may suffer, it is likely that the local authority will take them into care. A well constructed agreement, followed by the parties when the bad times come, will enable the children to continue their lives as near normally as possible, as well as the parents their own lives.

Death

However remote the chance of death of one of you may seem, you should consider and account for it. After all, you are entering into an agreement largely as an insurance policy, so you may as well deal with it thoroughly.

There is an additional problem with a death: either party may change a will at any time and if there is none, the normal rules of intestacy apply. A “life partner” is entitled to nothing by law.

Nevertheless, we recommend that you do each make a will. Despite the possibility of change, it is better than no wills at all. We provide a number of templates, one of which should be suitable. Simpler ones are even free.

Businesses and employment

It often happens that at some stage of the relationship, the parties decide one to help the other in a business, or to be a director of the company, or to set up a business together.

While it is impossible to know what the future holds, let alone plan for it, the long version of the Net Lawman cohabitation agreement provides a framework into which you can plan for possibilities.

You can keep business arrangements at arms length by using other business structure documents, such as a partnership agreement or a shareholders agreement. You can also separate business finance from personal finance by documenting loans and investments.

Documents

Net Lawman sell a cohabitation agreement that considers all these points here. It should act as an aide-memoire during planning, as well as the basis of a written agreement when you are both ready to commit.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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