With numbers increasing year on year, what do cohabiting couples need to be aware of?
In March 2022, ONS reported that over the last decade the number of cohabiting couple families saw an increase of 22.9% to 3.6 million. With numbers increasing year on year, what do cohabiting couples need to be aware of?
What is a cohabitation agreement and why might I need one?
If you are a couple living together or planning to do so, it is wise to have a cohabitation agreement.
An agreement can confirm or declare how you own property or other assets, with or without your partner, regulate financial arrangements while you live together, detail what will happen and who will get what if you separate, and indicate what should happen if either of you dies while you are living together.
Why is a cohabitation agreement important?
Cohabiting couples do not have the same rights as married couples, where the court has a wide discretion to fairly allocate resources between a couple if a marriage or civil partnership breaks down.
Call for reform
Over the years, many have called for legislation to be introduced to address the legal difficulties that are faced by some cohabitating families.
The latest call to arms in England and Wales was made by the Women and Equalities Parliamentary Committee in August 2022.
See our previous insight for a summary on cohabitation agreements according to Scottish law.
Cohabitation in England and Wales
Contrary to popular belief, cohabiting couples in England and Wales do not have the benefit of an all-encompassing law, either during their relationship or on separation. Current legislation, such as it is, is limited in scope, expensive to access and uncertain in outcome.
The legal remedies available to a cohabitant in England and Wales are extremely restrictive and based solely on the law of property and trusts rather than any element of fairness/discretion as would apply on divorce or a civil partnership dissolution.
Unless the couple start a family together, when different legal regimes exist under Schedule 1 Children Act 1989 to cater for the financial needs of any children (albeit the regime is not as generous as that on divorce or dissolution) and to regulate child support payments, there is no obligation for one party to support the other with maintenance payments and there may well be no recourse to any property/a home or pension.
The court is unable to consider the financial and housing needs of the parties and cannot take into account non-financial contributions to the relationship, such as looking after the home or caring for any children of the relationship. This can leave one partner extremely vulnerable if the relationship breaks down.
Cohabitation in Scotland
Unlike in England and Wales, Scotland does have legislation to protect cohabitants' interests when they separate governed by the Family Law (Scotland) Act 2006. The Act provides certain rights to cohabitants in respect of money, household belongings and joint accounts or savings that they may have accumulated during their relationship.
Most notably, the 2006 Act provides cohabitants with a right to make a claim on separation for a capital sum from the other party to try and redress any financial imbalance arising from contributions made by one party to the other during the relationship. For example, where they may have been left financially disadvantaged as a result of the relationship or may have financially advantaged the other party.
The test is one of fairness based on the individual circumstances of the particular case.
The court has a wide discretion to decide what is fair, but can only award a capital sum. The court cannot order a transfer of a house or other property or a pension share as it could in a divorce or dissolution case.
Scottish lawyers are calling for further reform.
Summary of differences between Scottish Law and the law in England and Wales
There are some key differences between Scottish cohabitation laws and the law applied in England and Wales.
How can a cohabitation agreement help?
Let's consider the situation in both Scotland and England and Wales.
Are cohabitation agreements legally binding?
A cohabitation agreement is a witnessed deed entered into by the
parties, setting out the arrangements that will apply when the
couple live together. Importantly it records rights and obligations
on the breakdown of the relationship.
As a contract, certain conditions, standards and safeguards must be complied with to ensure that it is a valid agreement.
We encourage people to approach us at the beginning of a relationship to consider the merit of a cohabitation agreement. Understanding the position at the outset and taking simple precautionary measures can help to prevent significant problems later.
As a cohabitation agreement regulates the arrangements during the period of cohabitation and provides for what happens to assets if the relationship breaks down, it can be much wider in scope and more creative and flexible than a court-imposed solution.
What issues could a cohabitation agreement cover?
A cohabitation agreement can regulate financial affairs during the course of a relationship and can include the contributions each party will make towards the bills/mortgage/rent, as well as the proportion of the property each will own.
On separation, as well as dealing with the division of assets, arrangements can be agreed about how business assets are held, how any debts should be paid and how contents should be divided.
See our extensive list for what a cohabitation agreement could cover in England and Wales, or what a cohabitation agreement could cover in Scotland.
How do cohabitation agreements help?
Entering into an agreement before cohabitation means that on any future breakdown of the relationship both parties can determine what will happen and help avoid the expense and stress of legal proceedings.
Cohabitation agreements in Scotland
The cohabitation legislation in Scotland specifically recognises that a cohabitation agreement might be entered into. Such agreements can specifically exclude cohabitant claims and so provide certainty of outcome for the parties if a relationship ends.
Given that cohabitant claims can be for substantial sums, couples contemplating cohabiting should consider whether it might be prudent to enter into a cohabitation agreement to regulate what will happen if they later separate.
Cohabitation agreements in England
As property and trust disputes can often be avoided if there is clear documentation to establish the position, with clear evidence of the intention of the parties, a written cohabitation agreement entered into at the start of a relationship can be extremely valuable.
Cohabitation agreements are becoming increasingly popular. A well-drafted cohabitation agreement will provide considerable protection for any person considering, or currently, cohabitating. They can be updated and modified over the years as situations change.
If the parties subsequently choose to marry or enter into a civil partnership, they will then be governed by different, and more generous, legislation as a married couple and so may wish to consider a prenuptial agreement before they marry.
If a couple are proposing to purchase a property together they should consider whether they will own the property equally or whether they need to enter into a declaration of trust setting out their unequal ownership of the property, and what might happen if it were to be sold in the future, for example, if they separated. This should be addressed with their conveyancing solicitor at the time of purchase.
They should also discuss with their conveyancing solicitor whether to own the property as 'tenants in common' or 'joint tenants' which have different legal implications if one of the co-owners were to pass away whilst the parties own the property together.
If the property is owned in the sole name of one of the
cohabiting couple, the other does not automatically have a right to
live there and may not be able to establish a claim to the property
The legal remedies available for property disputes are limited to trusts and land law solutions which are not specifically tailored to cohabiting relationships.
It may be possible to establish an interest in a property and bring a claim regulated by the Trusts of Land and Appointment of Trustees Act 1996 (TLATA or TOLATA). These can be complex disputes and it is crucial to seek legal advice at an early stage.
Learn more about the TOLATA claims process here.
Unmarried couples should always consider making Wills as the intestacy laws may not result in what they intended if one of them were to pass away, as well as considering whether to enter into a cohabitation agreement and take out life insurances.
How to deal with a cohabitation dispute
As with many issues, taking precautionary steps at the start of a relationship can smooth the way if a dispute arises in the future. You can find cohabitating advice in our survival guide.
If a relationship comes to an end, early advice can be crucial, and steps taken to gather supporting evidence may be required.
As these cases may be complex, time consuming and expensive, parties should be encouraged to look at non court methods of resolving their differences. Read more about how family mediation can assist property disputes for unmarried couples.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.