I'm moving in with my partner. Do I need a cohabitation agreement?

Couples who live together without marrying do not have any legal rights if they separate.  Without the benefit of an agreement, one of them could be left with nothing on separation.

The fastest growing type of family in the U.K. is that of the unmarried cohabiting couple.  It is an extremely prudent move to seek advice regarding a cohabitation agreement prior to commencing living together.  This can negate the need for complex and frequently costly legal disputes if the couple split up.

It is extremely important to note that, despite common belief, unmarried couples living together do not have the same legal protection as those who are married.  There is no such thing in English law as a “common law” spouse or partner.  The law does not recognise a cohabiting relationship outside marriage or civil partnership.

In England and Wales, if married couples divorce or civil partners break up, both parties have various legal rights against the other in relation to income which can include maintenance, capital which can include lump sums, property and pension.  The court has a  discretion under marital and civil partnership law to consider all the circumstances and history of the relationship and decide on a fair division of assets.

When couples are living together, without being married or entering into a civil partnership these legal rights do not exist so  if partner A moves into partner B’s property and the property remains in partner B’s sole name, if the parties separate, whether after five, 10, or even 30 years, partner A is not automatically entitled to  maintenance or support  from partner B, even if partner A has always been supported financially.

In addition, partner A does not have a legal right to a share of the property, even if partner A has contributed to the mortgage or to the family in other ways, for example staying at home to care for the children.  Therefore, unless partner B voluntarily agrees to pay partner A a settlement, partner A could potentially become homeless, unless he/she can afford or manage to go to court, in which case there is only a limited chance of success in any event.  Cases such as these tend to be complicated and often become very expensive. They often hinge on demonstrating a significant contribution which has enhanced the value of the property.

The law is different in relation to couples who own property jointly albeit are not married.

if you have been cohabiting with someone and the relationship has broken down, even if you do not have a cohabitation agreement, please do not hesitate to contact a member of the Family Team at Johnson Astills, who will be able to provide advice to you as to whether you may be entitled to anything in respect of any assets. If you intend to cohabit with someone and wish to have a cohabitation agreement setting out your rights and obligations then we can also assist. If you intend to buy jointly with a partner and your purchase contributions are different and you want this recognising then our conveyancing team can help and advise.

Recommendations were made in 2007 by the Law Commission that cohabiting couples should have greater rights on separation.  Sadly, no changes have been made to the law since then.  In 2011 an indication was given by the government that there were no plans to act on the reforms proposed by the Law Commission.