Do I need a Cohabitation Agreement?

Cohabitation Agreements – Are they really necessary?

Statistics suggest younger people living in the UK currently are less likely to get married than previous generations, with 1.5 million couples cohabiting in the year 1996 compared to 3.6million cohabiting in 2021. You can read more here.  There is an underlying assumption in the UK that a common law marriage exists between people who have been together for a longer time and are living in the same property –  this does not legally exist.

It is a common law myth that unmarried couples have the same rights as married couples and is a big reason for the increase in unmarried couples living in the UK. One of the main problems faced by unmarried couples is when one of the couple passes away, the other does not have any right to claim inheritance unless there is a Will in place. This does mean essentially, that the partner who is left has no financial protection in the event of the others death.

There are currently provisions in place for the government to start to consider the potential for legal reform in this area. However, despite urging by the committee from the Law Commission in its 2007 report, the government has yet to legally tackle the next steps in changing the law to better suit the changing approach taken by younger generations in not getting married.

The report suggested that there should be provision for economically vulnerable members of society to rebuild their lives and ensure a fair division of assets should a relationship breakdown and would apply to cohabitants who had lived together for a certain number of years or who had a child together. It was considered at the time of the publishing of the report that this would offer a pragmatic approach, however, it is yet to be adopted by the government.  Given that such a significant period of time has elapsed since the 2007 review, it is suggested by the Ministry of Justice that a fresh review should be undertaken in advance of the government publishing draft legislation in the 2023 to 2024 parliamentary sessions.

At present, cohabiting families are the fastest growing family type in England and Wales, however, they lack the legal protections afforded to married couples and this is a cause for great concern moving forwards, given the potential impact that this can have upon families and their financial positions.

Given that the government are currently in the process of reviewing the position legally relating to unmarried couples, this therefore poses the question as to what unmarried couples can do to protect themselves legally. One way in which unmarried couples can protect themselves is by way of a cohabitation agreement. This agreement allows couples to set out in writing, their intentions for their financial position when they move in together. This can include but is not limited to what could happen with property and other assets in the event that they separated.

In terms of the validity of these agreements, it is crucial to ensure that they are prepared properly and that both parties to the agreement have had the opportunity to take specialist independent family law advice and have considered the potential outcomes of the separation accordingly, prior to signing the cohabitation agreement. There is also the possibility that the cohabitation agreement, provided it has been entered into freely and has considered the circumstances of the individual couple as well as those obtaining legal advice, should be able to assist in the event of the death of one party to the agreement, as they should set out what the intentions of the parties were in life and in death. This does not replace a Will but it is able to provide intentions to a court in the event of a dispute. It is very important that cohabiting couples also has a Will in place alongside a cohabitation agreement as cohabiting couples do not have the same rights in life or death as married couples.

In the event that a cohabitee wanted to make a claim under the Inheritance (provisions for family independence act) 1975, they would show that they had been in a relationship with the deceased for at least two years prior to the date of death and that they were living in the same household as if they were a married couple. Ultimately however, the claims that are made under the inheritance provision for family independence act 1975 are very complicated and expensive to run and present several difficulties both legally and financially for those involved. Having both a cohabitation agreement and a Will in place can help to assist with these matters.

It is therefore imperative that cohabitation agreements are used by unmarried couples to fill the legal void which is created by living together as an unmarried couple from a legal perspective. An experienced family lawyer is essential in these circumstances and Maguire Family Law are able to assist in the drafting and considering of cohabitation agreements to allow you as a couple and as an individual to ensure that you have the most protection possible in the circumstances. Maguire Family Law are specialist Family Law Solicitors who are able to provide expert advice on the legal implications of cohabitation and the steps which should be taken by cohabiting couples to ensure that they are as legally protected as possible moving into the next stages of their relationship.

Whilst drafting a cohabitation agreement may not necessarily be viewed by couples as the most romantic thing to do together, it does ensure that a common intention is communicated between the couple and ensures that both parties feel empowered and aware of their individual circumstances and that as those as a couple. Our team of expert Family Law Solicitors are able to assist in the preparation and of a cohabitation agreement and any updates that may be necessary. It is important to reconsider cohabitation agreements when points in life change i.e. having a child. In the event that you currently have a cohabitation agreement and this requires an update, our dedicated team are able to assist with the required amends and to provide you with the updated legal position and advice.