Till Death us do part – Cohabitation agreements - Michelmores Family Law Service

( Last Updated: 17-03-2008 )

Michelmores family law partner Simon Thomas takes a look at the legal issues concerning cohabitation agreements

A cohabitation agreement is a legal document created by a couple who intend to live together.

It is designed to prevent difficulties and disagreements in the future, in the event that the relationship breaks down. The agreement is made specifically with the couple’s individual situation in mind, and the provisions included will be particular to their requirements.

Where have they come from?

Thanks in part to glossy magazines and tabloid press, pre-nuptial and cohabitation agreements have long been associated with American millionaires and wealthy celebrities eager to protect their fortunes. Whilst the United States has almost universally embraced such agreements, a cloud of scepticism has long lingered over the United Kingdom. Traditionalists claim that these agreements dilute a marriage, arguing that parties who are preparing for failure can never truly expect success.

With an annual UK divorce figure upwards of 160,000 and rising, fewer people are viewing marriage as the lifelong commitment it once was. The reluctance to transform an informal cohabitation situation into a formal marriage is understandable given such a high failure rate, and people are warming to the flexible idea of cohabiting.

However, there are those who want that little bit more. Whilst some people are content to live together, making decisions as and when they arise, there are others who need an element of certainty in their personal lives. A cohabitation agreement can provide this.

In the absence of specifically applicable legislation, cohabitation agreements are governed by the law of contract. Both parties must intend to create a legally binding document, and the agreement is then signed as a deed to prevent the need for any cash consideration. Both parties must be separately advised and represented, and full and frank disclosure of the financial situation of each party should be made.

What can be included?

In the interests of enforceability, the contents of an agreement should be confined only to those matters which each party intends to be legally binding. Provisions relating to money, property and land would fall within this category. A severance clause should also be included so that a clause which subsequently becomes unenforceable can be removed by the courts rather than rendering the entire agreement void.

And what should not?

Caution should be exercised with purely personal clauses which the courts may decide are not legally binding. Any clause which concerns the couple’s sexual relationship will fail, as will any provisions which attempt to oust the jurisdiction of the courts.

Agreements which are designed to regulate the day-to-day running of the relationship should be kept in a separate document, and can only be used for reference purposes. They will not be classed as legally binding.

It appears, therefore, that the introduction of cohabitation agreements will provide a degree of certainty to compliment the flexibility of cohabitation. Partners can cease worrying about the financial implications of a break-up, and can once again focus on whose turn it is to take the rubbish out!

Simon Thomas - Senior Partner, Family
smt@michelmores.com
Direct Line: 01392 687630

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