Recent changes in the social views about marriage, gender roles and religion mean that many couples do not regard marriage as necessary and instead they live their lives together as any married couple would; essentially entering into an arrangement known as cohabitation. Whether such arrangements are intentional or not, it is important to consider the consequences that follow, if a relationship breaks down.

Most common misconceptions about cohabitation are that after a certain amount of time, such relationships turn into a common law marriage, providing partners with protection when the relationship breaks down in the same way as a marriage. This could not be further from the truth.

This article will attempt to guide couples through their options when deciding to cohabit and set out why a cohabitation agreement might be necessary.

What is a cohabitation agreement?

A cohabitation agreement, also referred to as ‘living together agreement’ or a ‘no-nup’ is defined as a legal document which sets out the terms of the relationship. The document can outline how assets are owned and shared between partners. Most importantly, it can tell you what happens if you break up.   

The biggest asset to consider is often the property. Your cohabitation agreement should therefore include what happens to the property you purchase together, individually or one that either of you had before you move in together, especially if you plan to jointly contribute towards the mortgage.

What about your household expenses or items of considerable value that you acquire during your relationship? Your agreement can account for that too.

Unlike married couples, cohabitees cannot make a claim for spousal maintenance when a relationship breaks down. To protect against this, a cohabitation agreement can include provision for ongoing payment post separation. 

Whilst there is always an obligation to maintain any children of the family, and whilst you may always make an application under the Children Act 1989, it is a good idea to discuss the arrangements in respect of how you intend to co-parent children post separation. Questions like: ‘Who will the children live with?’ ‘How often will the non-resident parent see them?’ ‘Who shall be responsible for paying towards extra expenses such as a school trip abroad?’ are all worth discussing in your no-nup.  

In the unfortunate event of death without a will, cohabiters do not inherit under the intestacy rules. It is therefore especially important that this is taken into consideration by both partners, in order to avoid not only having to deal with a death of a loved but also a potential loss of assets.

How do you get a cohabitation agreement?

Provided a cohabitation agreement is executed correctly, it essentially becomes a legally binding contract. Both parties should take independent legal advice before agreeing to the contents. It is then signed as a deed. Considering the above, it is imperative you instruct an experienced solicitor to draft one.

We at Edwards Duthie Shamash have experience in drafting cohabitation agreements and can prepare tailor made agreements to meet your needs.