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 getting married or entering a civil partnership. If you are planning on moving in with your partner (or live with them already), it is essential to consider how to protect yourself financially, should your relationship come to an end or if one of you dies.
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 has not kept up to date with these changes. Couples are now choosing not to marry at all, and others may choose not to marry a new partner again following a divorce.
I am finding that these couples who choose to cohabit with each other, rather than getting married, 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.
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.
A Cohabitation Agreement is a very flexible document and can be drafted in a bespoke manner to suit your requirements. Quite often, the Cohabitation Agreement covers what happens during the relationship, and if it ends.
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 the Court has a large degree of flexibility and discretion as to how assets are distributed, regardless of who owns what.
If you do not have a Cohabitation Agreement, and there is a disagreement in relation to the ownership and distribution of assets on separation which you cannot resolve through negotiations or mediation, you will need to file a claim with the Court setting out what you are looking to achieve. This involves complex trust laws, and you are often dealing with “he said, she said arguments” with little evidence to prove what was agreed. If you 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.
Tips for agreeing what to include
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.
In my experience, I think Cohabitation Agreements work best when they deal with the bigger and more significant assets, rather than every fine detail. As a starting point, have a think about who has brought what into the relationship. Those are the assets that you are likely to want to protect. Discuss with each other how things are going to be paid for. It might be that one of you will pay a larger share because you have a higher salary. If the relationship breaks down, you may want to take with you a large proportion of the assets if you have contributed more during the relationship.
When moving in with each other, it is natural to have conversations about who is going to pay for what. Discussing the need to record those discussions in a Cohabitation Agreement is simply taking those conversations one step further to formalise matters.
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. Cohabitation Agreements are “bottom drawer agreements”. When it has been made, you pop it in the bottom drawer with the comfort of knowing it is there should a problem arise in the future. In addition, the costs of preparing a Cohabitation Agreement are only a fraction of the costs which can be incurred through litigation if there is a dispute arising from your separation.
Cohabitation Agreements also deal with things that cannot be dealt by a Court. For example, who keeps the dog or cat if the relationship breaks down.
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.
Summary
If you are considering living with a new partner 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 Inheritance and Trust Disputes team will be delighted to assist you.