A couple who live together can enter into a legally binding agreement to share their assets in a particular way. A cohabitation agreement is not automatically enforceable in the English Courts although a properly drafted cohabitation agreement may be enforceable by the courts in some circumstances. A cohabitation agreement can specify how the assets are to be divided on separation and can include provision for maintenance following separation.

It is a good idea to consider entering into a cohabitation agreement when couples purchase a property jointly. The agreement should state the amount of the share of the property each party owns and how they would wish the proceeds of sale of the property to be divided if the relationship ended.

The cohabitation agreement could also set out how the assets are to be divided on the death of either party. As the agreement is not necessarily legally binding it is important that unmarried couples make a will to specifically specify what they would want to happen with their assets when either party dies. Our wills department would be happy to assist with the drafting of a will.

There is a strong argument that the law should be changed to bring about fairer outcomes for cohabitants on separation, however such change is yet to happen.

It is usual now for parties in relationships to cohabit and enjoy a relationship as if they were married without the formal ceremony of marriage. Couples who live together without getting married do not acquire the same legal rights as those who are married.

On the breakdown of a relationship couples wrongly believe that the relationship they have with their partner is legally similar to marriage and fail to take steps to protect themselves from financial and other problems which may arise. When the relationship breaks down couples are concerned and distressed to find out that they have no financial protection.

During the course of a relationship couples are able to purchase property together, have children and even make wills, as if they were married however when the relationship comes to an end, the parties are treated as separate individuals no matter how long they have lived together. The law differs from that to married couples as the division of assets upon separation is considered complex and difficult and is based upon property law principles and not family law.

Couples who do not wish to marry but wish for there to be a clear agreement as to how their assets are to be divided on the breakdown of their relationship can enter into a ‘cohabitation agreement’. A properly prepared cohabitation agreement may be enforceable by the courts.

It is especially important to consider entering into a cohabitation agreement when unmarried partners purchase property jointly. Most unmarried couples purchasing a house together buy it in joint names, as ‘joint tenants’. This means that when the relationship breaks down each person takes half of the equity in the property, or if one party dies the survivor inherits the whole property. Unmarried couples can purchase a jointly owned property together and can state that each person owns a particular share, this is known as a ‘tenancy-in-common’. The amount of each parties share in which the property is owned must be set out in a properly drawn up legal document called a ‘declaration of trust’. When the relationship breaks down each party will be entitled to their specific share of the property. If unmarried partners live in a property, which is owned by one party, the non-owner is usually entitled to nothing and cannot claim a share of the property simply because they have been living there for a long time. There are some ways for people who are unmarried to acquire rights in property which legally belongs to their partner, however this is very difficult to establish and only arises in unusual circumstances.

The difficulty, however, is where the parties will live after the breakdown of the relationship. The parties can reach an agreement as to who occupies the home between themselves however if an agreement cannot be reached either party can make an application the court for this to be decided or for the property to be sold.

Once the property has been divided up, unmarried partners must be financially independent and are not entitled to financial assistance from their former partner. Unmarried partners cannot claim maintenance for themselves from their former partner. In addition, unmarried partners have no automatic rights under their former partners pension.