Frequently Asked Questions – Cohabitation - Family Law

This section of the website endeavours to provide answers to frequently asked questions.

Below are the FAQs about cohabitation cases.

The answers are necessarily general. They are information - and in some cases detailed information but they are not advice. Advice is something which is specific to you and your situation. We can only give advice as to the best options for your if we know a lot about your individual circumstances.

These FAQs can be a starting point in your journey to sort out difficulties. But the next step should be to arrange a meeting with one of our team of experts.

We are ready to help.

COHABITATION

What is the meaning of cohabitation?

There is not just one definition of 'cohabitation' but, in general terms, you are cohabiting with a person if you live together in the same property, in the same way as a married couple or a civil partnership, but you have decided not to get married or have a civil partnership.

If you are cohabiting, then you have limited legal rights if the relationship breaks down. You do not gain any rights simply by living with someone even if you have lived with them for many years and even if you have children together. There is no such thing as 'a common law husband' or 'a common law wife' and you do not gain any rights after 2 years (which is a common belief).

You do not have the same rights as a married couple when it comes to dividing finances including property, savings and pensions if you separate.

If you are cohabiting, or want to cohabit, then it is important that you take legal advice to make sure you understand what would happen if you did break up and any risks or remedies that may be available to you. Please read the rest of these questions and answers for more information.

We are also able to advise you about any issues in respect of children if you separate, including where children will live, moving away with children and seeing both parents.

What is the legal definition of cohabitation?

There is not only one definition of cohabitation. Different laws in the UK have different meanings for "cohabitants", "cohabitation", "cohabiting" or "cohabit". One is:

"cohabitants" is defined in section 62(1)(a) of the Family Law Act 1996 as "two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners",

The Collins Dictionary definition is:

"Cohabit"- to live together as husband and wife without being married; and

"Cohabitee" – a person who lives with, and has a sexual and romantic relationship with, someone to whom he or she is not married.

It may be important to be able to prove that you have been cohabiting with a person (as opposed to just living together as friends or as a landlord and tenant). This can be important if you separate or if one of you dies.

In court cases, where there have been disputes between people that have cohabited, Judges have looked at various factors to prove that people have been cohabiting and these include:

Are the people members of the same household and share daily life;
What did they both intend;
Did they have a stable relationship;
Did they share finances and is there any financial support between them;
Is there a sexual relationship;
Do they have children together or is one person has a child then has the other person taken on any responsibility; and
Do other people know that they are in a relationship together.

What is a cohabitation agreement?

A cohabitation agreement, also known as a living together agreement, is a contract that is drawn up between two people that are going to be cohabiting together. This can be done before living together or afterwards.

It sets out the intentions of you both. It can record who owns what and what will happen if the relationship ends. It sets out arrangements in relation to finances, property and children. It can set out what happens if you split up, get sick or if one person dies.

This is a document that we would draft specifically for you. We would need to meet with you and discuss your situation. We would help to make sure you are protected should your relationship end.

We set out a few examples below:

Example 1- if you own a property and your partner is going to move in with you then do you want them to have a share of your property? If the answer is no, then you can record that in the cohabitation agreement and make it clear that you do not intend for the other person to get a share. If you do not record this, and we can advise you on the other risks, then if you split up the other person may try and say that they should have some money from your property and could make a court claim against you. They might be successful and could then force you to sell your property.

Example 2- If your partner owns a property in their sole name and you are moving in with them if you pay into a joint account every month then is it clear if that is for bills or do you think you should get a share of the property over time? If you think you should get a share of the property, then this will need to be agreed. If not, then even after 20 years, you are not entitled to any share of the property unless you can prove a trust has arisen. This is very complicated and expensive court proceedings. We can advise you on your risks.

Example 3- if a couple have cohabited for 25 years and one has a pension worth £500,000 and savings of £60,000 then the other is not entitled to any share if they split up. They probably would if they had been married. To ensure fairness then any agreement can be recorded in a cohabitation agreement

Example 4- if a couple live in one person's house and they split up then the likelihood is that person will need to leave the property as soon as possible. A cohabitation agreement can give them a right to stay in the property for an agreed period of time, say 2 months.

Example 5- if one person earns £10,000 and the partner earns £40,000 then they do not have any right to have any maintenance from them if they separate. If they were married, then the law gives a right to claim spousal maintenance. We can advise on how to make sure it is fair if the couple separate.

It is possible for a person to gain an interest in another person's property if they can prove that a "trust" has arisen. This can be from direct or indirect financial contribution or by intention. This is where most disputes stem from as there is a mis- communication about what a person thinks they are paying towards. This is very complex law and the cohabitation agreement can stop an expensive legal battle if you separate.

What is a cohabitation agreement UK?

A cohabitation agreement uk, is a cohabitation agreement drawn up in the UK jurisdiction and is governed by the contract law in the UK. A cohabitation agreement UK can also be called a cohabitation agreement, a cohabitation contract, a cohabitation agreement or a living together agreement. This document sets out what will happen should you separate after living with your partner (if you are not married) and stops there being any disputes about money, property or living arrangements. It can include your intentions and who will be paying for what during your relationship. It can also clarify property ownership and often this is the main reason for having such a document.

For example, if you own a property and your partner moves in with you and assists with paying monthly costs you may want to agree that over time they will gain a percentage interest in the property especially if they are helping with the mortgage. However, you may consider that they are paying 'rent' and/ or only helping pay for bills and they will not be gaining any interest in your property.

It can also be important to decide who will pay for any decorating at the property, any maintenance to the house or to the garden. This will again save any disagreements if the relationship breaks down. This will save any disagreement on pone person thinking that they should be paid back the money they spent if they are not the property owner.

If you have assets in a different country, then it may be necessary to have various agreements or for you to take advice on the law of the country that you also have property. The UK does have arrangements with various other jurisdictions on enforceability of contracts and court order, but we can assist you with this and point out any risks.

It is important that you take legal advice on the implications of such agreement if you are given one by your partner to sign and if you are the person that wishes to have such a document then you can talk to us about what is important to you. We can help ensure that the contract protects you both and you both understand what is agreed.

What is a cohabitation contract?

This is another word for a cohabitation agreement, cohabitation deed or living together agreement. There is a lot of information on this page about the agreement that you can put in place if you want to live with your partner or are already living with your partner. This agreement can specify what you are going to do in relation to property, finances, joint accounts and practical matters. This type of agreement will ensure that if you do separate that there can be no disputes between you.

Should I get a cohabitation agreement?

Yes, if you are going to live with your partner.

You can also get one if you are already living with your partner but think that it would be sensible to clarify any issues between you, particularly in relation to money, property and living arrangements.

It can be particularly important if one of you owns property or if one of you have inherited money or been given money.

Should I have a cohabitation agreement?

Yes, if you are going to be living with a partner and at the moment you are not going to get married. This agreement sets out any practical issues you may wish to record, such as who will move out and in what time frame, should you separate. It can also record the intention of you both and clarify matters in respect of finances and property.

You should have a cohabitation agreement if you are already living with your partner, but something has changed, and you wish to record that. For example, if you have inherited money and want to invest it into your property, or for renovations on a property. This can cause issues if it is not clear whether that money ought to repaid or whether you have gained an interest in the property. If your partner owns the property but you pay for the conservatory or an extension what would happen if you separated? Would the money be repaid to you? Do you think you should have a share of the house? Or are you giving it to your partner as a gift? If you do not agree this with your partner, then it could cause a legal dispute in the future.

What should be in a cohabitation agreement?

A cohabitation agreement should include anything that you wish to record to ensure there is no confusion in the future if you separate.

This can include:

Confirmation of who owns the property and who will be paying the mortgage.
If you are renting, then who will pay the rent.
If one person owns the property, then will the other person gain any interest over time.
Who is paying the bills and in what percentage.
What will happen if you split up.
What will happen with any joint possessions or furniture.
Who will leave the property and in what time scale.
Will you be having a joint account and what can that money be used for.
If you have any pets of animals what will happen if you split up
What would happen if one of you inherited money or reached a gift of money.

What should be included in a cohabitation agreement?

A cohabitation agreement should include anything that will stop there being any confusion on the future. Please see the list above.

It can include clarification of anything to do with money or property and it can also include practical matters. It is a document that we produce for you. We talk to you about any concerns you may have and can advise you of any risks. The purpose of the document is to ensure that should you separate there will not be any disputes or confusion as to what will happen.

If you own a property together then this can be done in conjunction with the conveyancing process and we may also need to advise you to get, or update, a Will.

Any issues in respect of children can be mentioned in this agreement but the likelihood if that will need to be dealt with separately on divorce. However, your intentions can be set out.

What should go in a cohabitation agreement?

Anything in relation to finances, property or practical matters as set out above. It is very important that you carefully consider your financial position, and that of your partners, especially if you have unequal finances or one of you owns the property that you will be living in together.

Do cohabitation agreements hold up in court?

A cohabitation agreement is a document that is signed as a 'deed'. This means it is signed and witnessed and can be used as evidence in court.

If you reach an agreement and the other person then breaches that agreement, then the cohabitation agreement would be evidence in court of that breach.

For example, say you agreed that your partner moved into your property and that they would not be contributing towards the mortgage (and therefore would not be gaining any interest in your property). Then you separated and they tried to claim they should be entitled to money. Then you would use the cohabitation agreement as the evidence of what you agreed.

This is why it is very important to have legal advice as then the solicitors would also sign to say that they have given each of your independent legal advice and this would be better evidence that each of you understood the agreement and entitled into it with the benefit of legal advice.

Do cohabitation agreements work?

Yes, they do work. They are legal evidence of an agreement reached between two people and as stated above, can be used in court as evidence if one person made a claim against the other.

Do I need a cohabitation agreement?

Yes, if you are going to be living with someone and want to agree what will happen when you separate. The most usual dispute between people is in relation to property and whether a person should have a share in that property.

This is very important if:

You are the more financially vulnerable person. If your partner earns a lot more money than you or if you are moving into your partners property. You must understand that you will have limited rights if you separate. You need to consider how you would afford to leave their property and what your situation would be now, and in, say 10 years. What happens if you had retired? We can help you reach an agreement to give you some security if you separate.

Your partner is moving in with you and you are the one that owns the property. We can help you protect your assets (which may be even more important if you have children) or help you come to an agreement that is fair to you both over time. You may have inherited money, or you may have been gifted money and we can help you protect that money.

Do it yourself cohabitation agreement?

It is very risky to enter into a legal document without legal advice. You could be agreeing to something that is not fair or that is going to cause you a problem should your relationship break down. It could mean that you lose money, a share of your property or money that you have inherited or been given. Also, you may think you have gained rights, but you have not. You may think that you have secure housing should your relationship breakdown but in fact you may be giving up rights without realising it.

Often 'do it yourself' agreements do not have the correct words, are out of date or miss things out.

Please do not hesitate to contact Ian Walker Family Law and Mediation and we can advise you how much it will cost for us to help you, after an initial consultation.

Do you need a cohabitation agreement?

If you are going to be living with someone, or already live with someone, then we think it is important to set out your intentions. This includes financial intentions and also practical intentions.

You may need to consider the following:

One of you owns the property that you are both going to be living in;
One of you earns more than the other and you are going to be paying unequal amounts for various things;
You each own a property and are going to be living in one property and renting out the other property;
You want to document who owns the property and whether the other person will be paying towards the mortgage or not and whether that person will gain any interest over time;
Whether you will be having a joint account, what will be paid jointly and what will be paid for separately;
One person has inherited money or has been gifted money and they want to keep that separate or invest it into the relationship, but have it returned to them if the relationship breaks down;
One person will need to leave the property if the relationship breaks down. What would happen can depend on whether the property is rented or owned by one or both of you. For example, if you own the property how long with the other person be able to stay before they must move out.
What will happen over time;
What will happen if you have children together or what will happen if you each have children from a previous relationship.
What would happen if one of you became ill or one of you lost your job.
Who will carry out domestic duties.

It is likely that the cohabitation agreement will need to have a review clause.

We can advise you about all these issues and help you come to an agreement that is fair and helps avoid any dispute in the future.

How much does a cohabitation agreement cost?

It is very difficult to give a ballpark figure for this type of work as it depends on how much work is needed. Often this will depend on how complex the financial arrangements are, whether you both work, whether you both own property and if you have children. We produce a cohabitation agreement that is suited to you and your circumstances. However, the cost is a very small percentage of what it would cost in legal fees should your relationship breakdown and there is a legal dispute. Please do not hesitate to contact us and we can guide you through the process and once we have had an initial consultation with you we will be able to tell you have much the agreement will cost.

How much is a cohabitation agreement?

As stated above, it is very difficult to give a cost estimate without talking to you about your circumstances. Solicitor's usually charge for their work on a time recorded basis, but we are very experienced in dealing with these documents and can give you an accurate estimate of costs. Please telephone us and we can discuss this with your further.

Should cohabitation law be reformed?

Resolution is a nationwide community of legal professionals who work to help people resolve issues in a constructive way. Resolution, as a body, has been campaigning for the laws in this country to be changed to reflect the changes in society. There are now more people living together, or cohabiting, and choosing not to get married but there are limited rights for those people following separation. There has been support from the previous government to acknowledge changes must be made but unfortunately, due to Brexit and the Corona Virus, this has not been given and further attention by government. The position remains that married people are afforded much more legal rights than those that cohabit, upon separation. Please note that there is no such thing as a common law wife or a common law husband. You do not gain rights by living with someone, not even after 2 years as often is thought to be the case.

Should I sign a cohabitation agreement?

We do not advise you to sign any legal document without taking legal advice. You may be signing something that you do not totally understand or there may be things that we can suggest that would make the agreement fairer for you.

If you sign an agreement without legal advice then it may be difficult for it to be changed in the future and you may end up with large legal fees to assist you at the time a relationship breaks down. It is much cheaper, and less stressful, to take advice about an agreement at the beginning. Please do not hesitate to contact us and we can explain to you the likely cost.

Why marriage vs cohabitation?

At the moment the law in the UK jurisdiction gives much more protection to divorcing couples than it does to those that cohabit. People that cohabit may be surprised to hear that you have limited rights following separation.

If you are thinking of living with someone then it is sensible to take advice before you move in with them but please do not worry if you have not as you can take advice, and can take action if necessary, at any time after living with someone.

If you have separated from your partner (unmarried) and are still living in the same property, or have moved out, and have questions or concerns about money or property then please do not hesitate to contact us for advice. It is often important to take advice as promptly as possible.

If you are married and are separating from your spouse then please do not hesitate to contact us as we can help you with separation, divorce and the resolution of the financial matters.

If you are separating or divorcing and have issues in respect of children, then we can also help you with this.

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.

UK: Frequently Asked Questions – Cohabitation