Clarifying what each of you owns, as an unmarried couple, with a cohabitation agreement

  • If you are an unmarried couple living together (known as cohabiting), you have limited legal rights covering important financial aspects such as property.
  • A cohabitation agreement will help specify your rights if your relationship should break down.
  • The agreement needs to be properly drawn up to be considered in court, and we will produce a document that is clear and practical.

The law relating to cohabiting couples is completely different to law for married couples. Some people believe that if you live together for a reasonable length of time, you become ‘common law’ husband and wife, with the same legal rights as people who are married or in a civil partnership. In English law, this is not true.

This can make life very difficult if you buy or rent a house or have children together, and your relationship ends. To avoid the problems and disputes this could bring, it’s wise to enter in to a cohabitation agreement (also known as a living together agreement).

Cohabitation agreements

A cohabitation agreement can set out what happens if your relationship breaks down. It helps give you certainty about the financial contributions both of you make during the relationship. For example, it can cover property you own or rent together, how you share the household bills and expenses and all your jointly owned assets, such as a car and furniture.

If you are both living in a property that only your partner owns, the agreement needs to stipulate whether you have a share in it, perhaps because you contribute to the mortgage or household bills. Without the protection of an agreement, you might find yourself with no rights and potentially no home.

Your cohabitation agreement should also cover financial arrangements for children, whether you’ve had them together or they are from a previous relationship. It’s essential the children are still supported financially if your relationship ends.

A cohabitation agreement needs to be practical, fair and reasonable, so it stands up to legal scrutiny if you have to go to court. For this reason, it is best to have it drafted by a solicitor. With our experience of family law and relationships, we will create a cohabitation agreement that you are happy with, is workable and will be considered legally binding by the courts. Please bear in mind that we can only advise one of you, to avoid a possible conflict of interest. Your partner should have their own solicitor check the agreement too.

If you have a cohabitation agreement and later decide to get married, you can both stipulate the agreement should end when you’re married or that it stays in force. We can discuss this with you. We’ll also be happy to explain the benefits of pre-and post-marital agreements, which can give you continued certainty for the future.

Buying together

Whether you have a long or short-term relationship, buying a property together is an important step.

It should be covered in your cohabitation agreement if you have one. If you don’t have a cohabitation agreement, it is important the ownership of the property is recorded correctly so that if your relationship breaks down, you both get back the money that you intended. We can advise you on the legal documents required, and draw them up for you.

We have offices in London, Southampton, Richmond, Lymington, Woking and Guildford, and offer specialist support and expert family law advice to clients up and down the country. Contact us for more information on how we can help.

Can I claim on my partners’ house?

When a couple are unmarried, the financial claims are more limited. Usually, the first place to look is at the ownership of the property. If you appear as a joint owner at the Land Registry on the title deeds then it will be very difficult for your ex-partner to suggest that you do not have a claim.

What happens when your name is not on the title of the property?

The legal arguments become a little more complicated. The detail of how you arrange your financial affairs between you is likely to become very relevant. It is often the case that the person who is not on the title deeds will often contribute money towards the mortgage or pay for renovations or other improvements to the property. These scenarios can give rise to a claim over a property. If there are children involved, there may also be separate claims that can be made on behalf of the children against a former partner. The law in this area is particularly complicated and a specialist assessment of your particular circumstances is recommended.

Does a common law spouse exist?

If you remain unmarried during your relationship there are no additional rights that you acquire regardless of the length of time that you have been together. In short, common law husband or wife this is a myth. This only changes in the event that you have children between you. If there are minor children then financial claims can be made on their benefit.

Do children always stay with mum?

Where there is a dispute over where the children will live following separation, there is no law or legal bias that means that children always stay with their mother. If the arrangements for the children cannot be agreed then most couples are encouraged to try Mediation. However, if this breaks down or one parent feels they should have ‘custody’ of the children then the decision can be made by a Judge. Unless there are some serious safeguarding issues, a Judge is likely to make sure that children spend quality time with both of their parents. The best interests of the children are going to be the most important factor.

Can the children decide who they live with?

Children under the age of 18 cannot legally make the decision to live with one parent or another. If the parents cannot agree who should have ‘custody’ of the children then the matter will need to be decided by a Judge. As part of the court process, the Judge may want to understand the views of the child or children involved and who they say that they would like to live with. The younger the child, the less likely the court are going to seek their views. However, the views of older children can be taken into account. A child’s views, no matter how old they are, are never decisive, just one factor to be taken into account by a Judge when making the ultimate decision. Children do not always know what is best for them and courts are aware that sometimes parents try and influence a child’s decision about where they want to live.

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