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An increasing number of couples prefer to simply live together as opposed to getting married, for various reasons. This is where a “cohabitation agreement” comes into effect. A written cohabitation agreement will provide direction and plans as to what will happen to the physical and non-tangible aspects of your relationship after you separate.
These agreements should be drawn up in writing rather than agreed verbally, as although spoken agreements are by law legally binding, they are very difficult to enforce without any written proof. The following aspects should be considered when drafting the agreement:
If you have a joint bank account, the cohabitation agreement should contain provisions as to how the money should be divided. Ideally the agreement will include activity reports showing how the bank account and evidence of who was making contributions being made to the account. However, if you have been keeping separate bank accounts, the finances within these individual accounts will continue to belong to the named account holder only. There would be no obligation to share this following separation unless this was something that has been agreed in a cohabitation agreement.
Individuals are not obligated to financially support one another unless they have mutually agreed to this within the cohabitation agreement.
During relationships it is likely that you or your partner will accumulate financial obligations and potential debts. Upon separation, individuals are responsible for any debts that are in their name. Therefore, where the debt has both persons names, you would both be responsible for paying this debt.
Furthermore, if you are named as a guarantor of a debt for another person, you may be asked to make payments towards that debt if the individual named on the agreement can no longer afford to make payments. It is strongly recommended that the cohabitation agreement includes detailed provisions regarding how debts will be treated upon separation.
Rules will vary as to whether you are living in rented or owned accommodation.
If you are renting the property and both parties are named as joint tenants, you will have a right to remain in the property and cannot be asked to leave. However, if you are living in a property where another person is named as the sole tenant, you can be asked to leave the property within a reasonable time. Therefore, using the cohabitation agreement to put into writing how the tenancy agreement will continue upon separation can be highly beneficial and ensure both parties are working towards the same goal.
If the home is jointly owned, the cohabiting couple should note in their agreement whether the property was bought as joint tenants or as tenants in common as this may influence how the property is divided upon separation. If bought as joint tenants, individuals will both own the property 100% and would therefore need to agree how the property will be split if you were to separate. If bought as tenants in common, individuals will own a specified percentage of the property as detailed in their title deeds and this would need to be followed.
Individuals should also consider whether the agreement will affect any property they own before or after they entered the relationship as with no provision to account for this, individuals would need to come to an agreement following separation which can be difficult.
If you have children together, you could use the cohabitation agreement to clearly state how care for the children will be split amongst both of the parties.
Parents should consider their children’s needs using the Welfare Checklist under Section 1 of the Children Act 1989. Using this checklist, you should be able to consider the best dates, time and location for shared contact of the children. This may change over time as the children age and have other commitments such as after school clubs and socialising with friends.
In summary, a properly drafted cohabitation agreement will be legally binding upon both parties signing this and can create some certainty if the unexpected were to happen.
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