Cohabitation Agreement

Why do we need one?

Issues such as “who gets what?” and “who pays what?” are regulated by a series of laws that have been introduced over the years to cope with the particular problems that arise when people divorce.

Who are these agreements for?

However the position for unmarried couples is entirely different. Even though more people whether heterosexual or same sex are choosing to live every year are choosing to live together rather than get married or enter into a civil partnership, the law has been very slow to catch up with social trends.

Are these like Divorce orders?

Divorce law only applies to married couples and the equivalent civil partnership dissolution which applies to same sex couples, which means that co-habitees facing a relationship break down will have to resolve matters according to general legal principles.

What if I can’t get agreement with my Partner?

If the parties cannot reach an amicable agreement between themselves then the only recourse is to the law as governed by statute and precedent in the areas of contract, trusts and land. Precedent case law is commonly known as the “common law” and has lead to the concept of “common law marriage” which is a legal misnomer as there is no marriage and there are no automatic rights.

But before you do anything you must attempt mediation – Click for more information on Mediation

An alternative to Mediation is Collaboration

Common Law Husband/Wife, do they exist?

There is no such a thing as a “common law wife” and a “common law husband”.

Request for a Legal Consultation

Garner & Hancock realise that the prospect of pursuing a legal matter can be challenging, so we offer an initial phone consultation to discuss your options, and to give you information that will help you make the right choices affecting your case.

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We are just living together , nothing is in joint names – are we fine?

That after a given period of time you automatically acquire the same rights as married or civilly partnered couples: Not true. It is important to note that that someone cannot  claim a share in your partner’s house which you have lived in because they have paid bills or have had children together.

The Law may change in the future  about the rights of cohabiting couples. There has already been discussion by the Law Commission who has considered  recommendations for a proposal that unmarried couples who have lived together for more than five years should be able to inherit from each other without writing a Will. The period is two years if there is a child of the relationship.

If I cannot rely on divorce law, what laws will protect my assets and children

The first is the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”).

  • Under the Act, Trustees can manage a Trust of Land in a constructive manner for the benefit of the persons’ entitled under the Trust. Any person who is a Trustee or has an interest in property may apply to the Court under Section 14 of TOLATA for directions such as an Order for the sale of the property or a Declaration as to the person’s interest in the property.Court proceedings under TOLATA are available to joint owners and to a person who has an interest in a property but whose name does not appear on the Title to the property.In any proceedings under TOLATA any Declaration of Trust regarding joint ownership is of crucial importance and any Living Together and Cohabitation Agreement would also be highly relevant.
  • The second is Schedule 1 of the Children Act 1989 ( “Schedule 1 claims”). Where a separating couple have dependent children whose needs have to be taken into account, if appropriate the Court can order the payment of capital or the transfer of a property for the benefit of a child. These claims are usually made in tandem with proceedings under TOLATA. The use of a Schedule 1 Claim allows the Court to make an Order against a parent on the basis of the needs of a particular child when the same sort of provision might not be justified under a TOLATA claim simply on the basis of that person’s contribution to the property or otherwise.

What is the difference between TOLATA and Schedule 1?

  • A most important distinction between an award under a Schedule 1 claim and under TOLATA, is that under a Schedule 1 claim any provision of capital or property is for the benefit of the child and usually on the 18th Birthday of the child the capital will revert to the original owner and not to the parent with care who made the claim. Any award under TOLATA would not normally revert unless the Court was dealing with a life interest or a similar case.Accordingly, it is always preferable for people who wish to live together to agree in advance how their financial and property affairs will be resolved should separation occur; however unlikely that may seem at the outset.

Garner & Hancock Family law advice – Free and Confidential advice service

  • Garner & Hancock  can give advice on the various matters that should be included in a formal  Cohabitation Agreement relating to your children, income, property, liabilities and in the event of separation or death This should be binding on the couple should they decide to separate.

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