Cohabitation Agreements

Many couples now choose to live together before, or without entering into a marriage or a civil partnership; however, the legal rights of cohabiters are vastly different to those of married couples.

The term common law spouse is often used in the media to describe couples that have lived together, but there is no such distinction in English law. This myth has led many cohabiting couples to believe they have rights and obligations towards each other, similar to those of married couples, should the relationship breakdown. It often comes as shock to find they have no additional rights because they are cohabiting.

If cohabiting couples jointly own a property, then unless express provision has been made when that property was bought to give them different individual shares, they would usually be entitled to one half each, with little ability to make a claim on the other’s share.

In some cases where one party has bought a property in their sole name but the other party has contributed the contributing person can make a claim on that property. The issues the court takes into consideration when determining that share are exactly the same as if they had contributed to a property owned by any other third party. The fact that they are living together does not give them an enhanced or additional contribution.

This also applies to other assets e.g. a boat or a car. If a person has not made a contribution to that asset they are unlikely to have any claim.

Maintenance

If parties are married and get divorced a court may order one party to pay maintenance to the other over and above child maintenance obligations. This doesn’t apply to cohabiters.

Children

The same rules and calculations apply to paying and receiving child maintenance whether you are married or not – both parents should financially support their children.

However, because a party may not be able to make a direct claim against property they have not contributed to the court can order the parents to transfer a property or pay a lump sum to the other parent for the benefit of a child. If children attend a private school a School Fees Order can be made. However, such orders are only usually made when the parent who isn’t the primary carer has sufficient income and assets to meet the order and maintain themselves as well. These orders are for the benefit of the child and not the ex-cohabiter, so once the child reaches adulthood the orders will cease and property may revert back to the other property.

The Importance Of Possessing A Cohabitation Agreement

It is therefore wise to seek expert advice from a family lawyer before you start cohabiting, or in the early stages of cohabitation. A cohabitation agreement can be drafted to address all of aforementioned issues and to help avoid disputes and litigation if the relationship ends. It is very important to protect any property or assets brought into the relationship by a single party from future claims.

Cohabiting couples should also consider making wills.

Finally, it’s important that a cohabitation agreement is drafted by a legal professional with sufficient expertise. Possessing a poorly drafted agreement could be as bad as having no agreement at all.

If you would like free, no obligation advice regarding the creation of a cohabitation agreement, please complete the accompanying form or call us on 0114 3992355 to arrange a 30 minute consultation.

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