How can a Cohabitation Agreement help couples to financially protect themselves? What is included in the agreement and what are the benefits?
More couples than ever before are choosing to live together without marrying or entering into a civil partnership. If you are planning on moving in with your partner (or you already live with them), it is essential to consider how to protect yourself financially, should the worst happen.
Why you should get a Cohabitation Agreement
You may assume that living with your partner for a certain period of time automatically grants you rights comparable to those of a married couple, or believe that you are in a ‘common law marriage’. Unfortunately, this is not the case. In England and Wales, common law marriage is just a fiction – there are no laws specific to unmarried couples.
While relationships continue to evolve, the law sometimes doesn’t keep up with the changes. Some older people have not married in the first place and others, following divorce, are unwilling to look at remarriage even when they find a new partner. Some younger people are also not interested in marriage from the outset, so decide to stay as cohabiting partners.
We find that (particularly with older couples), people are often concerned about protecting their assets – and I want to talk about how Cohabitation Agreements can help in that situation.
What is a Cohabitation Agreement?
A Cohabitation Agreement is simply a contract and like any contract, can go into as much or as little detail as people want. Therefore, it is incredibly flexible. I recently completed two of these in the same week, one of which was five pages, and the other over 25 pages long!
It is an incredibly versatile document and can cover a wide variety of issues, specifically tailored to your relationship and the things that matter to you. In general, it will set out:
- How you will manage your finances – for example, who will contribute to the mortgage, housekeeping and utilities, and in what proportions?
- What should happen to your property and finances if your relationship breaks down – for example, will you split them equally, or will you split them in certain proportions, and how will that be calculated?
- What should happen to your property and finances if you or your partner die – for example, will you be allowed to stay in the property or will you have to move out? Or, as the owner of the property, do you wish to pass it on to your family members? A Will is of course important in these circumstances, but we work closely with our Private Client colleagues to ensure that the provisions of the Cohabitation Agreement and Will are reflective of each other.
Points to be aware of when drafting the contract
It’s important to understand that when separating, the approach of a Court in dividing assets is very different if you are unmarried, compared to couples going through a divorce.
With divorce, if parties fall out, the Court has a large degree of flexibility and discretion as to how assets are distributed, regardless of the name of the owner. With unmarried couples who have a Cohabitation Agreement, the Court will simply enforce the terms of the Agreement, good or bad, and has no flexibility to adjust it. Therefore careful thought needs to be given as to what is included.
Discussing a Cohabitation Agreement with your partner can be difficult when your relationship is going well, but making your intentions clear at the outset will help both parties understand what they are bringing to the relationship. It will also cut the costs and stress that could come from a future dispute over these issues.
Tips for agreeing what to include
Some people seek to regulate things during the relationship, some want to set out what happens on breakdown and some want to deal with both situations. The Cohabitation Agreement can include who pays for what and how they are reimbursed, as well as addressing funds that are to be received in the future, such as inheritance.
In my experience, I think Cohabitation Agreements work best when they deal with the bigger and more significant assets, rather than every fine detail.
Benefits of having a Cohabitation Agreement
Having this Agreement in place can be an excellent way for both people to move a new relationship forward with a sense of security, if that is their concern. It can also be varied or replaced at any time by agreement.
Cohabitation Agreements also deal with things that cannot be dealt with in divorce. For example, I have dealt with a number of divorce cases where who keeps a favourite pet has been an issue. The Court has no real power to address this, however it can easily be included in a Cohabitation Agreement.
I have found in a number of cases, simply discussing what needs to be included has flushed out potential issues and has enabled clients to address and resolve them with their new partner. Regrettably, I have also had a couple of cases where the issues raised have resulted in the relationship not progressing. However, in these cases, they addressed a potential problem that might have occurred later, and sorted it out in a different way much earlier.
If you are considering living with a new partner, and want to make a new life together, it is sensible to take control and regulate the key elements in a way that works for you both. When such issues are sorted out, you can move forward from a much stronger basis, and the chances of the relationship succeeding in the long term are far greater.
If you would like to discuss the details of how a Cohabitation Agreement could work for you, please get in touch with us and a member of our Family team will be delighted to assist you.