Why have a Cohabitation Agreement?

30th September 2021

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by Jackie Jessiman, Chartered Legal Executive, Senior Associate, Family Department

If you are living with someone without being married and the relationship breaks down, or one of you dies, you might think you would have similar rights to a married couple. You may regard yourself as common law husband and wife. In fact this term means nothing from a legal perspective and couples who live together have very few automatic rights as a result of the relationship. For example, you cannot claim maintenance from your cohabitant partner.

If you live in, or intend to move into, a property that is already held in your partner’s sole name, or a property which is held in your joint names, you should seek advice on your rights in relation to the property in the event of separation.  How the property is owned, or contributed to financially, will have a great bearing on how the property should be divided and whether you automatically have a right to a share of it. Sometimes a court might go beyond the legal title and decide ownership rights based on what you agree or contribute during the time that you live together, rather than approving a fifty-fifty split.

There have been cases where sole ownership of a property has been successfully challenged where it was established that both parties contributed to the purchase of a property even if this wasn’t registered legally.  This could apply whether the payments were made before a couple lived together or while they were doing so.  There have been other cases where the court has held someone to a promise they made in terms of how the property would be treated, even though that person subsequently changed their mind.  The strength of your case will of course depend on what evidence you have.  This not only applies to circumstances between cohabitees in a relationship together but also to other family members who have reached an agreement in relation to a property purchased in which one of them lives and the other does not.

Equally, there have been cases where joint ownership of a property has been challenged when one person moves in with a partner who already owns a property and then the property is then transferred into joint names on receipt of a contribution.  Your position will depend on whether you own the property as “beneficial joint tenants” or “tenants in common”.  Sometimes the purchase documentation will not specify either of these.  In these circumstances it will be presumed that you have equal shares unless you are able to establish something different based on the sort of principles contained in the leading case in this area.  If you own the property as “beneficial joint tenants” you own half each and nothing that either of you have done during your relationship affects this.    If you own the property as “tenants in common” then the size of your share should have been specified.   If they have not been specified, you will have to establish the size of your share based on similar principles described above.  Where the documents are clear, that will stand unless you can show that there has been fraud or mistake.

If you and your partner have children together, or if your partner dies and has not made a Will, then you should also seek legal advice in relation to what can happen and whether you are entitled to make a claim for either you or your children’s benefit.

To avoid these uncertainties, you may wish to consider having a cohabitation agreement prepared. This is an enforceable agreement setting out what you would both want to happen in the event of your separation.

Please contact Jackie Jessiman,  a family law specialist, in Ely on 01353 886996 for further advice and assistance in relation to issues regarding cohabitation and property-related matters.

 

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This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances.

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