In modern Britain, it is becoming increasingly common for couples to choose not to marry. However, at present, couples who live together but are not married are not subject to the same legal rights as married couples. It is often a common misconception, that if you live together, you are thought of to be in a ‘common law marriage’ and thus acquire the same rights as married couples- this is not the case. Therefore, unmarried couples should take extra precautions to protect their legal rights and assets.
Married couples will have automatic entitlements in terms of any estates left without a Will by their partner, as well as inheritance tax rights that are not afforded to unmarried couples. Furthermore, there is no legal framework for unmarried couples regarding the division of assets upon separation.
This is why our solicitors at BakerLaw always recommend that unmarried couples who decide to move in together have a cohabitation agreement, providing them with legal protection should the relationship breakdown or in the event that one party passes away. We also recommend drafting a Will, which will also provide legal security.
What is a cohabitation agreement?
A cohabitation agreement is a legal document which sets out what each unmarried partner owns in relation to certain assets, the financial responsibilities of each partner and how any jointly owned assets and savings will be divided in the event of a separation.
It is important to note that cohabitation agreements are not legally binding in the UK, however they can carry significant weight in court if certain conditions are met. These conditions include proper drafting, that independent legal advice was sought by both partners, and full financial disclosure of both parties during the agreement's creation. To strengthen the enforceability of a cohabitation agreement, it is advisable for both parties to obtain independent legal counsel to ensure the agreement is fair and reasonable.
Why would I need a cohabitation agreement?
An unmarried couple without a cohabitation agreement will expose themselves up to potential legal issues in the case of separation or if one of them passes. When two individuals live together without a cohabitation agreement, they have no legal protection, so it is always recommended to seek legal counsel and quality guidance into how to make a cohabitation agreement.
Cohabitation agreements also have benefits outside other than offering legal protection. They also have the benefit of giving both partners clarity over what each person’s financial commitments are, helping them to understand their entitlements and responsibilities when living together and helping to avoid miscommunications and arguments if the relationship ends. Cohabitation agreements also provide evidence in court if litigation is required.
What should be included in a cohabitation agreement?
Firstly, a cohabitation agreement should always be drafted by and with the guidance of a professional cohabitation agreement solicitor and should include the following:
- A list of assets owned separately by either partner prior to cohabitation
- A list of assets that are owned jointly, such as property, vehicles and miscellaneous items.
- Household bills
- Any children involved
- Any jointly owned pets
- How assets will be divided upon separation
- How to divide debts and pay bills
- Child arrangements
Once your family law solicitor has drafted and created the cohabitation agreement, it can still be amended according to your preferences. In fact, we advise updating the agreement whenever you experience any significant financial or personal changes such as:
- The birth/adoption of any children
- If either partner falls seriously ill
- If either partner becomes disabled
- If either partner’s financial situation changes
- If either partner received inheritance
- The partners decide to marry or enter a civil partnership
Should I have a solicitor when creating a cohabitation agreement?
Seeking guidance from a qualified family law solicitor is essential when creating a cohabitation agreement. Obtaining individual legal advice is necessary to ensure the agreement's proper execution and legal validity and it is more likely that the court will accept the document if the matter goes before the court. Moreover, the expertise of a solicitor helps prevent errors and provides reassurance that all steps have been taken accurately.
Speak to our cohabitation agreement solicitors
If you are considering creating a cohabitation agreement, our experienced team of solicitors at BakerLaw are here to help. We have extensive experience with cohabitation and have the skillset to help you, whether you need assistance in drafting the agreement or need personalised advice, our team is committed to supporting you every step of the way.