Cohabitation Agreements: Protect Yourself Living Together

The government defines the common law marriage myth as the mistaken belief that unmarried couples can obtain rights similar to those of married couples if they have lived together for a period of time or have a child. nidirect says there is no such thing as common law marriage, and that couples who live together, also called co-habitants, have hardly any of the same rights as married couples or civil partners.

In England and Wales, property disputes between cohabiting partners are governed by the Trusts of Land and Appointment of Trustees Act 1996, which is based on trust law principles. Compared with divorce proceedings, the civil courts are significantly more limited in the types of order they can make when resolving disputes between cohabitants.

If you separate in England and Wales, the government says that in those property claims:

• ✗No: The civil courts cannot award maintenance
• ✗No: The civil courts cannot divide pensions
• ✗No: The civil courts cannot make lump sum payments
• ✗No: The partner who is not the legal owner has no automatic share: where one party is the sole legal owner, the starting assumption is that the legal owner holds the entire beneficial interest in the property

Where a property is held in joint names, the court will start with the presumption that the beneficial interest is shared equally between the parties. To claim successfully a share of a property held in one name, the other partner must prove they have a beneficial interest, usually by showing they made financial contributions or that there was a shared understanding about ownership.

Home rights, which include a right not to be evicted or excluded from the dwelling-house except with the leave of the court, are given by section 30 of the Family Law Act 1996 to a spouse or civil partner. Under section 36, a cohabitant or former cohabitant who is not entitled to occupy the home may apply to the court for an occupation order against the other.

Cohabitation agreements are agreements which may set out the following. They can be made at any stage and updated as circumstances change.

• ✓Yes: Details of ownership of property
• ✓Yes: Each partner's financial responsibilities during the relationship
• ✓Yes: What should happen if the relationship breaks down

Cohabitation agreements are not automatically legally binding and their enforceability depends on how they are drafted.

An instrument is validly executed as a deed by an individual if, and only if:

• ✓Yes: it is signed by the individual in the presence of a witness who attests the signature, or at their direction and in their presence and the presence of two witnesses who each attest the signature
• ✓Yes: it is delivered as a deed

An instrument is not a deed unless it makes it clear on its face that it is intended to be a deed and it is validly executed as a deed.

Because enforceability depends on how an agreement is drafted, a family-law solicitor can draft or check it for you.

GOV.UK says a surviving partner who was not married or in a civil partnership with the deceased has no automatic right to inherit. Our dying without a will guide explains who does inherit. The government says cohabitants are excluded from the intestacy hierarchy, and that regardless of the length of the relationship or the presence of shared children, a surviving cohabitant is not entitled automatically to inherit any of their partner's estate on intestacy.

• Under the law of wills, individuals have wide freedom to leave their property to whomever they choose, so a valid will can leave your estate to your partner
• An unmarried partner can apply under the Inheritance (Provision for Family and Dependants) Act 1975 if, during the whole of the period of two years ending immediately before the date the deceased died, they were living in the same household as the deceased as if they were a married couple or civil partners
• Those who cohabited for a shorter period may still apply, but only by showing that, immediately before the death, they were being maintained, either wholly or partly, by the deceased

The government says that for all applicants the sole ground of claim is that the disposition of the estate does not make reasonable financial provision, that any award is discretionary, and that cohabitants are limited to maintenance only, whereas spouses and civil partners can claim whether or not it is necessary for their maintenance.

Scotland has its own rules for cohabitants in the Family Law (Scotland) Act 2006. In sections 26 to 29, a cohabitant means either member of a couple consisting of a man and a woman who are or were living together as if they were husband and wife, or two persons of the same sex who are or were living together as if they were civil partners. In deciding whether someone is a cohabitant, the court has regard to the length of the period during which they have lived together, the nature of their relationship during that period, and the nature and extent of any financial arrangements.

• It is presumed that each cohabitant has a right to an equal share in household goods acquired, other than by gift or succession from a third party, during the period of cohabitation, and the presumption can be rebutted
• Subject to any agreement between the cohabitants to the contrary, money derived from any allowance made by either cohabitant for their joint household expenses, or property acquired out of that money, is treated as belonging to each cohabitant in equal shares
• When cohabitants cease to cohabit, the court may on application order the other cohabitant to pay a capital sum, and an application must be made not later than one year after the day on which the cohabitants cease to cohabit
• When a cohabitant dies intestate, the surviving cohabitant can apply to the court for payment of a capital sum, or transfer of property, out of the deceased's net intestate estate, and an application must be made before the expiry of the period of 6 months beginning with the day on which the deceased died

Northern Ireland: nidirect says there is no such thing as common law marriage and that couples who live together have hardly any of the same rights as married couples or civil partners. If you were partners but were not married or civil partners, nidirect says you will not automatically get a share of your partner's estate if they do not make a will, and to claim under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979 you will need to show you were maintained either wholly or partly by the deceased.