Recent figures from the Office of National Statistics show that in 2022, approximately 6.8 million people were involved in cohabiting relationships rather than marriage or civil partnerships. In England and Wales, there is no legal recognition of the status of cohabitation, nor do the often-quoted phrases ‘common law wife/husband’ exist. This means that a cohabiting couple need to make their own arrangements, or otherwise be governed by strict principles of property and contract law, which may not be suitable for those within a family or romantic relationship.
Is it worth getting a cohabitation agreement?
A cohabitation agreement sets out the basis on which the couple intends to cohabit and can also outline what should happen in the event of separation or if the relationship ends, particularly if one of them were to die.
The agreement can regulate issues including:
- how the ownership of the property should be regulated. This is particularly important if the property is in the legal name of one party only;
- how the mortgage payments should be met;
- how bills, including utilities, and outgoings should be paid;
- how should money spent on any improvement works be reflected in the ownership, and whether DIY should automatically increase a party’s share in the value of the property;
- what happens if the couple have children and one party’s earning capacity is affected by staying at home to look after them;
- what happens at the end of the relationship, how the share in the property should be divided, and the mechanism for sale of the property;
- whether either party should be entitled to “buy out” the other party’s share at the end of the relationship;
- what happens to any jointly owned pets; and
- who owns items that you have purchased together, including any pieces of art, cars (often held in one party’s name), as well as antiques through to the sofas?
How enforceable are cohabitation agreements?
A cohabitation agreement should be properly signed and witnessed as a deed, and the negotiations should not be the subject of any duress, misleading information or fraud.
A cohabiting couple should also consider whether a Declaration of Trust or Deed of Trust should be prepared at the time of acquiring a property. However, very often we see couples who enter into a cohabitating relationship after one or the other has already purchased a property.
Bear in mind that a cohabiting couple does not have any automatic rights to inherit on the death of their partner (although, if they hold the property as joint tenants, the interest in that particular property may pass under the law of survivorship – but that is a matter for another day).
A cohabitation agreement can also set out the parties’ intentions for child maintenance, but it is not possible to oust the jurisdiction of either the Court or the Child Maintenance Service. A cohabitation agreement can afford a great deal of protection, and importantly limit the scope for argument. It encourages the couple to agree on matters at a time when they are feeling well-intentioned toward each other to seriously explore alternative means of resolving any dispute, including mediation, hybrid mediation, or arbitration.
Above all, cohabiting couples should take advice on their circumstances. Please contact Teresa Cullen, Partner, for any queries.
