Cohabitation agreements

There is no clear legal status of 'cohabitants'. This area of law has always generated a considerable amount of discussion, particularly in the wake of the Civil Partnership Act.

A marriage is a legal relationship which can be entered into by two people of the opposite sex. A civil partnership is a legal relationship which can be entered into by two people of the same sex.

Two people can live together as if they were man and wife or as if they were in a civil partnership but there is no such thing as a 'Common Law Marriage' or a 'Common Law Civil Partnership'.

The practical realities of living together however have given rise to some confusion about rights, obligations and legal consequences. For example a couple who are simply living together will nevertheless be treated as a single unit for the purposes of claiming income support or job seekers allowance. A person who has cohabitated with another for a certain amount of time may be able to make an application on the death of the other if insufficient provision has been made from the deceased's estate.

When a relationship of cohabitants breaks down however, there is no 'code' which determines how property should be dealt with.

If there are children from the relationship, it may be possible to make a financial application under the Children Act 1989. It may also be possible to make an application to the Court for a declaration of beneficial entitlement in a property. This can involve quite complex considerations of trust law. Courts may need to examine the common intention of the parties, promises made and any money contributed to the joint home. For further information please see our factsheet: Money following living together.

English law has never been keen on the sort of agreement which aims to regulate every aspect of a relationship specifying the days on which you are responsible for the washing up! What is sensible however, is the sort of agreement which aims to clarify and regulate property entitlements.

Often people's main concern is to be clear about the home. In a committed relationship which is akin to marriage or civil partnership and where both parties are contributing in equal or equivalent measure it may be appropriate to draw up an agreement or a declaration of trust clarifying the shares in which they own the property. Those shares can change over time if for example, one party's contribution has been an up-front lump sum payment and the others are the assumption of responsibility for the mortgage. Equally it may be just as important to enter into an agreement which makes it clear that somebody does not have any interest in a property owned by the other. This could for example be the case in a much more transient relationship where a boyfriend or girlfriend is moving in just because it's going to make things cheaper for a while. It might be important to clarify those contributions to living expenses and/or utility bills were not to be interpreted as 'purchasing' any interest in the property.

Ultimately in the absence of children, claims by cohabitants would need to be based on property rights. If there is a clear document in existence evidencing those rights then generally speaking that will prevail.

Particularly in a longer term relationship it is also sensible, where drawing up an agreement or a declaration of trust to consider what provision if any it would be sensible to make by will. Although cohabitants may be able to make an application following their partner's death, it is much better to plan properly rather than rely on litigation. It is also important to bear in mind that on the breakdown of a relationship between cohabitants, it may be possible to establish some sort of interest in the family home under trust law. It is not going to be possible to obtain maintenance, pension sharing orders or a share of savings put by from the other person's income.

Cohabitants do not benefit from what can be regarded as, to some extent the 'catch all' provisions of the Matrimonial Clauses Act which to some extent give the Court discretion to distribute assets fairly. Rights therefore need to be established through property law and that is best done through clear agreements.

It is very important to keep any such agreements under review particularly if what was thought initially to be a relatively transient relationship then develops into something much more.