TT153: Cohabitation Agreements

July 23, 2010

In many respects, the law does not recognise cohabitation. Cohabitants’ rights are usually limited to financial claims on behalf of children and/ or claims in respect of property.

A cohabitation agreement allows unmarried couples to formalise their relationship in a legally enforceable way.

What is a Cohabitation Agreement?

It is a contract between unmarried couples to set out their rights and responsibilities towards each other and for their children during their relationship and when it ends. A Will is part of this good planning.

It can make clear when the cohabitation begins, set out future intentions for housing ownership and occupation, and who will be responsible for household expenses and debts.

The agreement can cover plans for where and with whom the children will live, and the financial arrangements to be made up to the end of their education or training.

The agreement is acted upon on various triggers which normally include death, marriage, when the living together comes to an end or where one partner leaves home.

How to negotiate a Cohabitation Agreement?

To ensure the cohabitation agreement is contractually binding, specialist legal advice should be obtained by each partner.

Negotiating through the Collaborative law process can be a highly effective way to reach agreement. This involves each partner and their lawyer signing a Participation Agreement with a commitment to resolve issues by way of 4-way Roundtable meetings.

Nowadays, the Collaborative law process is preferred by many clients to the traditional approach, which involves each lawyer seeking to obtain the best outcome for their client, which can become adversarial and therefore lead to disagreement. By contrast, the Collaborative law process promotes more involvement by clients in the process with lawyers helping to facilitate agreement which therefore reduces the potential for disagreement.
What are the issues with Cohabitation Agreements?

It can be difficult to resolve disputes when the agreement comes to an end and what will be the triggers for reviewing the agreement. There is a tension between allowing sufficient flexibility for review on the occurrence of major life events, such as the birth of children, and rigidly adhering to the terms of the agreement. The agreement should be adapted to meet the couple’s specific requirements.

Other points to consider

Legal advice should be obtained early on in the relationship for couples living together. Where property is owned or occupied by the couple, a Declaration of Trust records the property share of each cohabitant and how they may dispose of each share. It can reflect if different contributions are made by each cohabitant. It is particularly important to make a Will because cohabitation does not automatically entitle the survivor to benefit following death.

Cumberland Ellis LLP solicitors will be delivering a seminar on cohabitation agreements on Thursday 2 September 2010. If you have an urgent query regarding this issue please contact your Barnes Roffe contact partner.

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