90 seconds With Richard Kwan on … Cohabitation – Protecting your interests

What is a cohabitation agreement?

A cohabitation agreement is a document which records a couple’s arrangements both when they live together and in the event that their relationship breaks down.

Do I need a cohabitation agreement?

Cohabitees have far fewer rights than married couples. For example, a court cannot (other than in relation to a child) order a party to pay maintenance or transfer property. The ‘common-law spouse’ remains a myth. Whether you are concerned about protecting your assets or how you will make ends meet should the relationship break down, it is worth seeking legal advice at an early stage.

What can a cohabitation agreement cover?

A number of issues, for example:

– recording who owns the property (both legally and in terms of beneficial ownership which may not be reflected at the Land Registry);
– what will happen to the property if cohabitation ends, including whether the property should be sold and how to divide the sale proceeds;
– who will pay for the mortgage and household expenses;
– regulating the parties’ finances, including how a joint bank account will be managed;
– occupation of the property;
– protecting gifts, inheritance and other assets; and
– financial support.

Are cohabitation agreements binding?

The position is unclear. Arguably, cohabitation agreements are not strictly legally binding. However, ensuring that a cohabitation agreement is well drafted, and that both parties openly disclose their finances and seek independent legal advice, will make the agreement stronger (and therefore more likely that a judge will uphold its terms).

What if I do not get a cohabitation agreement?

There are of course cases where cohabitees go their separate ways and deal with matters amicably. However, I have seen my fair share of cases where the stress, time and cost of going to court could have been avoided, or at least reduced, with a cohabitation agreement. Having a cohabitation agreement can therefore help to reduce any conflict later on, and it also means that both parties know where they stand.

Richard Kwan

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Please note the contents contained in this article are for general guidance only. Legal advice should be sought before taking action in relation to specific matters