A Cohabitation Agreement is essential for any unmarried couples, or even friends or family, that live and own a property together. There has been a massive increase in the number of cohabiting home owners over the past 15 years as the cost of living has made it more economical to share a living space rather than living on your own. The challenges arise when there are arguments, or worst of all break ups, and there isn't a legal agreement to call upon to protect the relationship and also your interests.
Cohabitation agreements most often refer to contracts drawn up between unmarried couples or those not in a civil partnership, which give financial and other protections to each individual.
Marriage and civil partnership automatically confer these kind of protections but the law presently does not protect cohabiting couples in the same way.
Our cohabitation agreement can help protect all cohabitees, not just couples.
These include:
✓ ALL cohabiting couples, regardless of sexual preference
✓ Family members
✓ Friends
✓ People who meet through Share a Mortgage's social network
Need a cohabitation agreement? Get Shared Ownership Protection - call 0207 112 5388.
Unmarried? Then you're not recognised under English common law
Around one in four unmarried couples living together think they have the same legal protection as married couples, according to research by the Co-op. Sadly there is no status in English law as a common-law spouse or partner.
The number of unmarried couples has doubled since the mid 1990s to nearly three million, while the number of children living with unmarried parents has risen from 0.9 million in 1996 to 1.8 million in 2012. In addition, there are an estimated 6,000 same-sex couples, not in a civil partnership, who have children.
However, virtually nothing has changed in how the law treats cohabiting couples and their property if they separate.
If you are buying a joint ownership property with your partner, friend or flatmate you need to make sure you have a joint ownership agreement in place to protect all your interests. Our Shared Ownership Protection is the most comprehensive and competitively priced Cohabitation Agreement. Call 0207 112 5388 to find out more or click below.
What happens if the relationship ends?
If a cohabiting relationship breaks down there is very little protection for the joint property owners and if they have children, this can be made even more complicated. As a result, some cohabiting families can find themselves facing real difficulties should they split up, particularly when children are involved.
In England and Wales, when married couples divorce or civil partners break up (known as dissolution rather than divorce), both parties have a legal right to maintenance and their share of assets, including property and inherited property. The judiciary has complete discretion under marital law to take all the circumstances and history of the relationship into account and decide on a fair division.
Cohabiting couples have no such rights, regardless of the number of years they have been together and whether they have children.
Say, for example, partner A moves into partner B's property (partner B, whose name is on the deeds, is the sole owner), they live together and maybe have children. If they separate, whether after five, 10 or even 30 years, partner A has no right to personal maintenance from partner B even if she has always been supported financially.
Partner A also has no legal right to a share of the property, even if he or she has contributed to the mortgage or paid in other ways, such as staying at home to care for the children. So, unless partner B voluntarily agrees to a settlement, partner A could become homeless unless she can afford to go to court – (see the box, right, on the case of Pamela Curran) and even then there's only a limited chance of success.
Any attempt to claim part of the property in such a case is fraught with difficulties, because what you have is a situation where there is no law. "All the courts can do is try to bring fairness using cobbled-together bits of other legislation on property, land and trust law but it is legally and technically complex. Therefore it can cost an enormous amount of money to fight it out in court.
What is the legal split of the home for Cohabiting Couples
Where cohabiting couples jointly own their family home, in English law the property will be divided equally 50:50. If one joint owner has contributed more, either through deposit or mortgage repayments, unless the split is formally written in a legal agreement when the joint owners purchased, then there will be a challenge to argue any other split. In cases where joint owners go to court to argue over varying splits it can become very costly and there is no guarantee they will win.
Despite the Law Commission making recommendations in 2007 that the rights of cohabiting partners upon separation should be increased, nothing much has changed. The current government indicated in 2011 that it had no plans to act on the proposed reforms.
As the law stands, the only solution for cohabiting couples who want legal protection should they split up is either to marry or enter a civil partnership, or to draw up a cohabitation agreement.
What is a Cohabitation Agreement?
The cohabitation agreement can greatly assist harmonious mortgage sharing from the outset: people know exactly what's expected of them, what the aims of the share are (for example, how long a share might be intended to last for) and what will happen if a sudden change occurs.
The cohabitation agreement within the Shared Ownership Protection includes:
✓ A specific date for when you will sell the property (this can be extended by agreement)
✓ How to leave if the relationship breaks down
✓ What happens if one of you stops paying their mortgage repayments
✓ What happens if you want to sell and they don't
✓ What happens if they disappear
The cohabitation agreement can cover a wide variety of living arrangements and life style habits even including pets, smoking, friends you don't want in the house and what nights are acceptable to have a party.
Our Shared Ownership Protection can include a cohabitation agreement that can go into as much or as little detail as you'd like it to.
Pre-nuptial for Joint owners; not a great conversation to have with your partner
✓ How to leave if the relationship breaks down
✓ What happens if one of you stops paying their mortgage repayments
✓ What happens if you want to sell and they don't
✓ What happens if they disappear
Our Shared Ownership Protection can include a cohabitation agreement that can go into as much or as little detail as you'd like it to.
It may not be the easiest conversation to have, but being realistic when you buy with a joint owner, you want to make sure that should anything happen, you are able to walk away with your correctly apportioned share. A Cohabitation Agreement lets joint owners agree things in a fair way at the outset without the pressures that can arise if a relationship breaks down.
Cohabitation Agreements are legally binding
As long as the Cohabitation Agreement is effected properly with both parties getting independent legal advice on the agreement, then it will have full force of English law. By getting independent legal advice it will avoid later allegations of undue duress such as, "my partner made me sign it".
If an unmarried couple break up then a court will consider the contents of the cohabitation agreement, however most couples will use the agreement to settle between themselves without the need of going to court. Unmarried Couples can also use the dispute resolution service provided by Share a Mortgage to help mediate any disagreements and mitigate the costs of attending court.
But we love each other; it’ll never happen…this is how it can go wron
CASE STUDY by The Guardian: Stripped of everything – after 30 years
The plight of unmarried cohabitees who can find themselves homeless and financially adrift when their relationship breaks down is starkly illustrated by the case of Pamela Curran, currently fighting in the courts for a share in her ex-partner's home and business after more than 30 years together.
Ms Curran, age 55, and Brian Collins, age 52, began a relationship as teenagers in the late 1970s and remained "an item" until 2010.
During the last years of their relationship the couple lived and worked together at The Haven, a boarding kennels and cattery business near Ashford, Kent, which was bought in 2007 for £750,000. Mr Collins was registered as the sole legal and beneficial owner of the business and the adjacent property in which they lived together.
When the relationship broke down, Ms Curran found herself virtually penniless with no alternative but to stay with friends. She said she had always trusted Mr Collins and assumed that if they ever split up she would receive a "fair share" of the business and property.
When the case reached the Central London County Court in May last year, the judge concluded that the couple had not established a business partnership and that, therefore, Ms Curran had no legal right to a share in the business or the home.
Dismayed by this ruling, Ms Curran took further court action and in January Lord Justice Toulson granted her permission to appeal against the country court ruling, telling her she was the victim of unfair and old-fashioned property laws which offer little protection to cohabiting couples whose relationships came to an end.
Ms Curran sobbed as she told the court that she had worked hard to make the business successful but had been left with absolutely nothing to show for it.
"I was absolutely stripped of everything," she said. "The person you see sitting here today is not the person I was, because I have been destroyed."
Lord Judge Toulson said: "Judges ought not to be affected by human sympathies, they must apply the law as they see it."
But, he added: "It was extremely difficult not to be affected by a sense that the appellant has, in truth, been treated unfairly. She describes herself as a nobody, but with a profound sense that what's happened was not just."
A date has yet to be set for Ms Curran's appeal hearing.
Why risk this happening?
