Harrington Family Law

A Cohabitation Agreement is intended to make sure that when two people decide to live together, that the issues of property are discussed and agreed upon before entering into the cohabitation. The decisions about what is to happen to the property if the relationship breaks down are much easier to resolve if they have been thought about and agreed beforehand.

Please be aware that there is still legal debate about the value and enforceability of cohabitation agreements; the issue of cohabitee rights is being considered by successive governments, and there are periodic attempts to consider recommendations and reform. At present, however, cohabitees where the relationship has broken down have to rely upon confusing and unpredictable decisions in the courts as to the property rights of each partner; therefore a cohabitation agreement is advisable to try to prevent court applications if the relationship breaks down.
To minimise the challenge as to whether the agreement is enforceable, there should be no allegation that one party has been subject to duress or undue influence. The parties should have independent legal advice and should make full and frank disclosure of their financial positions. The parties must intend for the document to create a legal relationship, ie a contract, and it must be in the form of a Deed.
If you are intending to create a cohabitation agreement, there are a number of issues which you need to discuss with your partner. Once you have agreed what should happen, we can draw up a Cohabitation Agreement for you and your partner will need to take independent legal advice before signing it.

Issues to be included in the agreement:

1. Housing and other property

• Do you intend to buy a home with your partner?
• What will your contributions be by way of deposit and mortgage payments?
• Will you have the property as joint tenants or tenants in common?
• If you will hold the property as tenants in common, in what proportions will that be?
• If the financial circumstances of one of you changes (redundancy, childbirth etc) how will the mortgage be paid?
• If there is a change in the amount that each of you pay towards the mortgage, should that change the shares that you each have in the property?
• How should any improvements to the property be funded and how will this impact upon your shares (if at all)?
• If one of you pays a lump sum off the mortgage (eg redundancy payment, inheritance) will this have an impact on your shares?
• If one of you wants to sell up, will the other party have first refusal and be able to buy the other party out?
• If so how will that interest be valued?
• If not, how much notice should be given of intention to sell?
• If at the date of separation there are children living with you, should this affect the sale timing or price?
• If there is a life policy supporting the mortgage, how should the proceeds be applied if one of you dies?
• In what proportions should each of you contribute to the other outgoings such as utility bills, council tax, endowment policies etc?
• How would a change in your respective financial circumstances affect this?
You may also need a Deed of Trust drawn up to be kept with the Deeds

2. Financial support after separation

• Maintenance for children ; and
• Maintenance for a former partner
It is very difficult to deal with these issues in a Cohabitation Agreement, since the Child Support Agency will keep jurisdiction over child maintenance, ie either parent can apply for a maintenance assessment even if there is an agreement. While it is possible to make an agreement for maintenance, it is also difficult to draft it in such a way that provides for all the circumstances of the case.

3. Joint bank accounts and credit cards

• How should you each contribute towards a joint account?
• If the funds in the joint account are used to buy items for the house, how will ownership of these items be decided?
• If they are joint possessions, how will they be divided if you split up?
• How should the joint account be divided if you separate?
• What will happen if there is a joint overdraft?
• If there is a joint credit card what should it be used for?
• How will ownership of items bought with a joint card be decided?
• If the items are owned jointly, how will they be divided if you separate?
• What will happen if there is a credit card liability when you separate?

4. Cars

• How should a car purchase be funded?
• In whose name should a car be registered?
• What will happen to the car if you split up?
• Will one of you be able to “buy the other out” for the car, and if so how will you value the car?
• Who will be responsible for running costs including repairs, insurance and road tax?
• In whose name should be the insurance policy?
• If there is finance or a hire purchase agreement, who will be responsible for payment if you separate?

5. Other property

• How is ownership of large or valuable items to be decided?
• Will one of you be able to “buy out” the other, and if so, how will you value the items?
• How will you sort out gifts made to you as a couple?
• How will you divide other property that you have accumulated during the relationship?
• If you have bought items on hire purchase or other finance, who will be responsible for ongoing payments?

Issues not to be included in the Agreement

There are likely to be some things which you want to consider before you cohabit. These should not be included in the Cohabitation Agreement as they can’t be enforced, and they might jeopardise the legality of the Agreement if they are included.
Nevertheless, there are some issues that you might want to discuss and to think about what is likely to be important for you to consider.

1. The Relationship

– What are your intentions? Do you intend to marry at some point? Do you intend to live together all the time?

– Will you share a surname? If so what will it be?

2. Children

– Do you intend to have children?
– If you do have children, have you agreed the arrangements as to who will take leave from work?
– What will be the arrangements for childcare if you both return to work?
– How will childcare be funded?
– Will you register the birth together so that the father will have parental responsibility as well as the mother?
– Which surname will the child adopt?
– How will the child be educated?

3. Employment and contributions to the household

– Do you both expect to continue in full/part time employment?

– Will you want to take time from work eg to travel?

– If you do reduce or stop work, how will each of you contribute to the household and to parenting?

4. Financial provision for unemployment, retirement and death

– Will either / both of you put in place critical illness / unemployment cover?

– How will such provision be funded?

– If no such provision is made how will you each pay for the household expenses in the event of illness or unemployment?

– What provision will you make for retirement?

– Will you take out life cover?

– Will you make provision in wills for each other?

– Will there be nominations as regards death in service benefits

Most people feel uneasy about discussing a cohabitation agreement. It is completely natural to feel this. However, grasping the nettle at this stage, uncomfortable as it is, is preferable to the alternative: unpredicable and costly litigation way down the line.

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Harrington Family Law is the trading name of Harrington Law Limited which is a limited company registered in England and Wales with registered number 11651440 whose list of directors is available for inspect at its registered office. Harrington Law Limited are solicitors of England and Wales authorised and regulated by the Solicitors Regulation Authority under SRA number 666091.

If you are a client and we have made a contract with you by electronic means you may be entitled to use an EU online dispute resolution service to assist with any contractual dispute you may have with us. This service can be found at: ec.europa.eu/odr