It would hardly surprise you to know that most cohabiting couples who live together don't have a written agreement governing their rights. But do you really need too?
If you are living with, or are deciding to live with your partner but are unmarried, then no matter how long you have been together, you don't have the same rights as married couples and you may have little legal protection in the event that you split up. There is no such thing as ‘common law wife/husband’, well not since 1753 and I don’t mean 7 minutes to 6pm!
In the case of property, for example, if you have a joint rental agreement or mortgage, it's up to the both of you to decide what will happen if you break up. However, if you've been living in your partner’s house, then it will not be as easy and you may be left without a place to live, even if you have been contributing to the mortgage, paying rent or paying your way in other ways (e.g. paying the utility bills, staying at home to look after the children, caring for your partner, etc.). If your name is not on the deeds then you have no right to the property!
This is where a cohabitation agreement can help. This is a contract, between two people who live together, which sets out their agreement on the division of their combined assets. It is essential for people who live together but are without the protection afforded by marriage or civil partnership. The agreement states who owns what and who contributes what and is not only important if the relationship ends, but also if one partner dies. Having a cohabitation agreement makes the consequences of splitting up a lot easier to deal with and a LOT CHEAPER without having to incur expensive legal bills!
In England and Wales there is no formal legislation which makes cohabitation agreements legally enforceable, but given that a cohabitation agreement is a contract existing between two parties, so long as it complies with the basic requirements of contract law, it should be legally enforceable. Therefore, each member of the couple is advised to take independent legal advice as to the terms and conditions of the agreement before signing it.
A cohabitee or civil partner who was in some way financially dependant upon their partner and who finds themselves without adequate provision, either because their partner died without making a Will or because a Will was made but left insufficient provision to the partner, has a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975.
A person wishing to make a claim under the Inheritance Act must do so in very strict time limits. The person applying asks the Court to investigate the assets left by the deceased and the provision made for the applicant. The applicant will ask the Court to find that insufficient provision was made and that this should be rectified.
How much better it is to avoid all that hassle and make a cohabitation agreement.
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