Cohabitation Agreements – do I need one?

Cohabitants are couples who live together as if man and wife but outside the confines of a marriage, for example, as boyfriend and girlfriend. In England and Wales, many couples are choosing to live this way and it is a relationship arrangement that is continuing to increase in popularity.

Contrary to popular opinion, cohabitants are treated very differently from married couples during the course of their relationship and also in the event of a relationship breakdown or the death of one of the cohabitants, and there is often a lot more legal protection for spouses in comparison to cohabitants.

Sadly, many cohabitants are unaware of this fact and this has led to the creation of the “common law marriage myth” where some cohabitants wrongly believe that they have the same legal rights as couples who have entered into the bonds of marriage.

Some of the key differences are as follows:

• Married couples benefit from certain tax reliefs not available to cohabitants;
• The rule of survivorship applies to spouses but not necessarily to cohabitants;
• Spouses can claim maintenance from their ex-spouse upon relationship breakdown but cohabitants are not entailed to claim such relief from their ex-cohabitant;
• Unmarried fathers do not automatically obtain parental responsibility for a child but married fathers do.

Most disputes between cohabitants arise in the event of a relationship breakdown, usually when decisions need to be made about key issues such as the future care of the parties’ children and/or what is going to happen to the family home. In the absence of an amicable agreement, such disputes can often result in protracted and expensive legal disputes where cohabitants have to rely on complex legislation and Court action to reach a resolution.

In order to try and alleviate such disputes from arising upon relationship breakdown, cohabitants are being advised to enter into a “Cohabitation Agreement” to set out what is to happen if the relationship ultimately fails i.e. where will the children live – how much time they will spend with the other parent? Who will keep the jointly owned property – will it be sold or transferred to one of the parties?

This type of agreement works like a contract and it is intended to create legal relations between the cohabitants, and to set down exactly what is to happen to any children of the relationship or the parties’ assets upon separation. Such an agreement is usually tailor made to each individual couple and whilst not legally binding, it does act as persuasive evidence in the event of a legal dispute.

If you would like further information about Cohabitation Agreements or any other family law issues, please contact the Family Law team on 01582 514000.