Cohabitation Agreement FAQs

cohabitation agreement FAQs
Liz Bell
Solicitor at Jones Myers

Cohabiting couple families remain the fasting growing relationship in the UK, but many mistakenly believe that they have the same legal rights as married couples in critical areas such as savings, income, pensions or business interests.

In fact, cohabiting couples are the second largest family type after married or civil partner couples, but the law does not offer them any protection should their relationship turn sour and separation becomes inevitable. 

Below are some of the questions we are asked by cohabitees:

My partner and I are thinking of living together. Is there anything we can do to protect ourselves should we split up?   

A cohabitation or ‘living together’ agreement, to record who owns what at the outset, provides some security to unmarried partners. It encourages people to think clearly about what they want to happen not only while they live together, but also if their relationship ends, setting out who owns what – and in what proportion.

Cohabitation agreements set out how you will divide property (as well as paying off debts), personal belongings, savings, pensions and other assets should you split up – along with how your children will be supported, plus how to deal with bank accounts, debts and joint purchases such as a car. They can also cover more day-to-day matters including pets.

It is important that each party seeks independent legal advice and discloses all financial information in the lead up to signing the agreement, which should be reviewed regularly.

Can a cohabitation agreement be set up while we’re living together?

Yes. It can be drafted either prior to or during your time together. It can also be amended, as long as both parties agree that the original agreement should be changed and how. 

I’ve paid into our mortgage for many years, but the property is in my partner’s name. What happens if we go our separate ways? 

Cohabitation gives no automatic rights to the home you share if the property is solely in your partner’s name.  It doesn’t matter how long you have lived there. However, if you can show that you have contributed to it and there was ‘an intention to share’, you may be able to make a claim. This is a very complex process, though – and legal advice is essential.

Relating to the above, what happens if my partner dies?

If they die either without having made a Will, or having made one, without making reasonable provision for you, as the surviving partner you would have a potential claim as a cohabitee – providing you have lived together for at least 2 years ending with date of death.

Under current law, if you cannot satisfy the 2 year requirement, you may be able to make a claim on part of your deceased partner’s estate as a dependent. It is important to bear in mind that a dependent’s claim ranks lower in priority than the cohabitee’s claim.

If your partner dies without making a will, the law says that a property in their sole name – or their share of it – must go to their next of kin.

First among these are any spouse, and then any children, followed by the next closest group of living relatives. You will not be a surviving spouse for pension purposes as you were not married. You might be able to make a claim against your deceased partner’s estate if they have not made reasonable provision for you, and subject to other conditions imposed by law.

To avoid this potential issue, you and your partner should make wills and/or consider transferring any property into joint names.

About Liz Bell

Representing clients across the UK and overseas, Elizabeth’s expertise spans wide-ranging financial disputes.

Her track record includes complicated high value cases involving company structures, trusts, offshore assets and jurisdiction issues.

Elizabeth Bell

Feature photo credit – photo credit: naiaraback1 via photopin (license)

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