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Cohabitation Agreement

Some couples may have had a Cohabitation Agreement or a “living together agreement” which sets out how the property should be divided. If this is the case, the post separation arrangements should be relatively straightforward to finalise with our assistance. If there is no formal agreement in the place then the situation is far more complex: • In the absence of an agreement, if the property is held in joint names then it will usually be divided equally between the separating couple. • If the property is held in the sole name of one partner, the other partner will seek to establish what is known as a beneficial interest in the property.

Can a Cohabitation Agreement be Enforced in Court?

A “Common law marriage” is a myth and does not exist or have any rights in a court of law, consequently it is important to protect your legal and financial interests. It’s often a taboo to talk about financial and legal matters in a relationship as it’s perceived to be unromantic and can bring up questions of distrust, but it’s the sensible thing to do to protect yourself.

To protect and provide security for yourself, a cohabitation agreement is an easy way to set out who owns what, any financials arrangements and how assets should be divided if you split up. The agreement can be made as detailed as you want; including belongings, contents, property, savings and much more. 

If you cannot resolve these issues by negotiation, it might be necessary to make an application to court. A claim under this legislation can:

  • Force the sale of land or property
  • To determine the share in the property which each partner owns
  • Allow a partner to reoccupy a former family home

This is complicated and anyone in this situation will benefit from taking advice from us at the earliest opportunity. On separation, the property will usually have to be sold so that each partner can realise their financial interest.

Couples buying a home together prior to marriage is on the increase, this could be through choice or with the intention of getting married later. Either option is fine, and both are a personal choice. However, this option comes with downfalls that do not affect married couples due to their automatic legal rights which cohabiting couples currently do not have. The agreement can be made as detailed as you want; including belongings, contents, property, savings and much more.

These agreements are also useful if you are buying a home with someone you’re not in a relationship with, friends, parents, siblings and much more. It is likely that a Court would enforce a properly prepared Cohabitation Agreement as it is a legal contract between you.

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What sort of things does a Cohabitation Agreement Cover?

  • Contribution to mortgage, household bills or rent
  • The fact that if you own a property each of you may have contributed differently to the deposit
  • Joint bank accounts
  • What would happen to your pension
  • How would you deal with any debts
  • What kinds of arrangements would you like to make for any children you have or are likely to have, both in financial and in practical terms?

What happens to the house if we separate?

For unmarried couples planning to separate from their partners, the Trusts of Land Appointment of Trustees Act 1996 (known as TOLATA) can be a very complex area of law, often very expensive and require expert advice from the outset.  A declaration of trust is also usually included in a this agreement – this is a binding contract that confirms what share of property each person owns, how the assets will be divided in the event of a sale or split, and the payment of the mortgage.

The agreement covers various eventualities and all to protect the legal and financial interests of all parties. Another way to protect your assets is to have a will. Wills are a good idea for anybody, but are particularly important for cohabiting couples. For married couples in the event of death the widow automatically inherits their spouse’s estate – for cohabiting couples there is no such automatic right.

A will is a legal document that will set out what happens in this event. Both options are particularly helpful should the relationship sour and will prevent any bitter disputes at an already traumatic time.



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