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Cohabitation Agreement FAQs

What legal rights does a common law spouse have?

No legal status whatsoever. A so called “common law wife” (or husband) does not have a right to make a claim against the other for maintenance or for a share of their assets. It may, however, be possible to make a claim on behalf of a child of the relationship.

What issues would be covered by a Cohabitation Agreement?

The agreement should cover the rights of each partner in relation to property particularly the home that you live in, who owns other assets and who will be responsible for debts. It is also common to agree how mortgage and outgoings in your property will be shared.

Is a Cohabitation Agreement legally enforceable?

It is a contract between the two of you and the agreement can say that you intend it to have legal force. It should be a formal document and you should each have independent legal advice. However, the Agreement may not be enforceable if it is unfair or becomes unfair as a result of the passage of time. It will not overrule other legal rights; for example, the rights you have if children are involved.

What happens to the property that we live in?

When you purchase a property it is always sensible to consider how you will hold it and there are several alternatives:-

  • One of you might be the sole owner and, if so, you may wish to make it clear that your partner does not have a share in it and does not have the right to remain there if your relationship breaks down.
  • You might be the sole owner and wish to provide for your partner to acquire a share in your property.
  • You may own the property together as “joint tenants”. When one of you dies, the property automatically passes to the other outside the terms of your Will.
  • You may own the property as “tenants in common”, in which case each of you should own a stated percentage in the property. Those percentages can also be recited in the Cohabitation Agreement.

You may be renting a property and difficulties can arise when the tenancy is in one party’s name. In that case the other party will not normally have any rights to remain in the property if the relationship breaks down and the tenant asks the non-tenant to leave. You may decide that the best solution is to convert a sole tenancy into a joint tenancy but this will depend on the landlord’s agreement. 

What will happen to assets that are bought in the future?

Unless there is a contrary agreement, if you buy assets with your own money, ordinarily it should belong to you alone. The same applies if you receive a gift or inherit a property. If you buy things together, these are generally jointly owned but not necessarily 50:50. In the Cohabitation Agreement you might decide that joint assets are owned in the proportion of the price contributed.

What happens if we decide to marry?

Your Cohabitation Agreement may say that the contents should be taken into account by the Court if you later divorce. Another solution is to agree that the Cohabitation Agreement will terminate in the event of marriage and will be replaced by an appropriate Pre-Marital Contract.

What happens to our debts?

You will usually be liable for your own debts unless you borrow money in joint names or guarantee your partner’s debts.

How can I ensure that my rights in relation to property are legally enforceable?

A formal Cohabitation Agreement where both parties have independent legal advice is the first step. You may also need to draw up a Declaration of Trust which sets out your rights in respect of property and what happens if you split up. It is also important that you both have Wills as, unlike married couples, your partner will not automatically inherit.If you are thinking ahead you need to consider whether your partner is entitled to your pension and to any other company benefits such as Death in Service. This will depend on your pension scheme and whether your employer extends benefits to unmarried partners.

Do I have any rights over my partner’s children?

This depends on whether you are the natural parent of the child. A natural parent generally has shared Parental Responsibility with the mother.If you are not the natural parent of your partner’s child, you do not have any automatic rights or responsibilities although you can apply to the Court for a “Residence Order” to give you Parental Responsibility. If the relationship breaks down both parties have the right to ask the Court for the child to live with them and they can also ask for contact to the child, regardless of whether they have Parental Responsibility. The Court will decide what is in the best interests of the child.

How can I give my partner rights and responsibilities for my children even though he is not the natural parent?

You will need to apply to Court for a “Residence Order”. Normally this requires the consent of anyone who already has Parental Responsibility (for example, the natural father). The Court will look at the child’s best interests.

If you cannot obtain a Residence Order, you may decide to appoint your partner as the child’s guardian in your Will. This gives a clear indication of your preferences but, of course, another person with Parental Responsibility (usually the natural parent) is likely to dispute this.

Who will deal with the Cohabitation Agreement in the event that our relationship ends?

You should always try the Collaborative approach or Mediation (see our website) rather than going to Court. The Cohabitation Agreement will usually provide for this as the first port of call.

Is the position the same for gay couples?

Gay couples may marry and they are able to register a Civil Partnership too which gives them the same rights and responsibilities as a married couple.

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