Cohabitation Agreement: The responsible way to protect your rights
- AuthorNaomi Evans
According to the Office for National Statistics (ONS), in 2012, there were 5.9 million people cohabiting in the UK making it the fastest growing family type in the UK.
There are many reasons why couples choose to move away from the idealistic notion of marriage and choose to cohabit instead. These may include wanting to test compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry. Some choose cohabitation because they do not want to be controlled by political, religious or patriarchal institutions.
Whatever the reason, many of these couples wrongly believe that they will be entitled to the same rights as married couples. This is far from correct. Cohabiting couples often find out when it is too late that the legal protection afforded to married couples, does not extend to them.
When a marriage breaks down the couple have distinct rights against each other by virtue of their marriage. These include claims against property (whether in the spouses joint or sole names); income - known as ongoing spousal maintenance where one party may have an ongoing financial support on a monthly basis; and pensions. Cohabiting couples do not have any such rights or claims against the other partner!
The last claim married couples have by virtue of their marriage is a claim against the others estate. For example, in a marriage, when one spouse dies, the other spouse has the legal right to inherit a portion of the deceased spouse's estate. In cohabitation, when one cohabitant dies, his or her property will pass to those named his or her Will or, if there is no will, according to the rules of intestacy. The surviving cohabitant partner has no claim to the estate unless he or she was named in the deceased Will. the higher earner in the marriage may have the obligation to provide financial support for the other spouse. Cohabiting couples will not incur this obligation.
Do you have ANY rights as a cohabiting couple?
Although there is a Cohabitation Rights Bill 2014-15 which provides certain protections for those who live together as a couple or have lived together as a couple, it is still going through the stages at the House of Lords before it can become a law. There are several stages the bill has to pass, which could take some time. There is currently no statute that deals with financial claims of cohabiting couples and therefore they are not afforded the certainty and protection that Married couples enjoy under the Matrimonial Causes Act 1973.
Equally in the event of a dispute arising in relation to property of cohabiting couples there is no family law protection, the couple will have to rely of claims under the Trusts of Land and Appointment of Trustees Act 1996. These applications are notoriously complex and costly.
What should you do to gain some legal rights as a cohabiting couple?
In order to provide certainty and agreement between cohabiting couples they can look at entering into a Cohabitation Agreement. This is a contractual agreement setting out how the couple are going to live together and how any property will be divided if the relationship breaks down.
Whilst the court is not bound by an agreement contained within a Cohabitation Agreement, provided the couple has received independent legal advice and the provisions of the agreement are fair, the court is more likely to rely on a cohabitation Agreement as evidence in any Trusts of Land and Appointment of Trustees Act 1996 (ToLATA)application.
What can be covered in a cohabitation agreement?
There are many issues that can be agreed upon within a Cohabitation Agreement which include:
- ownership of the family home and other assets,
- how outgoings for the family home are to be discharged,
- an agreement as to the course of action to be taken regarding property on the breakdown of the relationship.
It can even deal with issues regarding children, although, any agreement relating to children will be open to review by the court.
Whilst some may consider it cynical, there are many benefits to entering into a Cohabitation Agreement. It is sensible, at the early stage of the relationship, to plan for the future to prevent emotional turmoil and unnecessary expense. Entering into a Cohabitation Agreement also provides an element of certainty.
If you and your partner would like to have a confidential discussion about your specific situation, please feel free to contact me at the office on 01604 828 828.