Cohabiting & Unmarried Couples

In reality, ‘common law marriage’ doesn’t exist, and cohabiting couples do not have the same legal rights and protections as those in a marriage or civil partnership. This means that disputes between couples who live together which do reach the courts are often drawn out. Arguments can then be expensive where there’s little evidence to support either side’s position.

A cohabitation agreement provides evidence of the intention (or not) of couples to share assets and expenses – with the goal of avoiding going to court over future disagreements. Such an agreement can record details such as:

• who owns what in the relationship
• who will pay the mortgage and other household expenses
• what should happen to financial assets and property if you separate.

A cohabitation agreement can also be used to record you and your partner’s intentions regarding property or other assets you buy together after the agreement is made.

Anyone wishing to set up a cohabitation agreement should first take independent legal advice, and make sure full and frank disclosure of financial circumstances has been made to each other. These steps will help to avoid accusations that one party has been forced to sign a cohabitation agreement and / or didn’t know and understand the context within which it was made. It’s advisable too to include certificates signed by each solicitor to show each party has been advised about the effect of the agreement.

For a long time, the courts didn’t recognise prenups as enforceable. This changed in 2010, when a landmark court case, Ms Radmacher v Mr Granatino, led to the Supreme Court changing how prenups are treated. Following that decision, the Supreme Court justices have concluded that prenups can have decisive weight in the right cases.

This means it’s now established practice to give effect to prenuptial agreements – unless other circumstances indicate it wouldn’t be fair to hold the couple to this agreement. For example, it could be that their circumstances have changed in a way they could not have been envisaged when the agreement was drawn up. The longer a marriage has lasted, the more likely it is that this will be the case.

At Sharp Family Law, our aim with prenups is to limit the negative impact that marital disputes may have on a family. For example, they may be particularly useful for families who wish to pass wealth down the generations and ring-fence their inheritance gifts.

Prenups can also be highly appropriate for second marriages. We often see clients who are thinking about marrying for a second time, anxious not to repeat the trauma of divorce and financial separations. By entering into a prenuptial agreement, they may be able to protect their future financial wellbeing, as well as their children’s inheritance.

You must take care not to leave preparing a prenuptial agreement to the last minute. Couples should make sure they receive independent legal advice in good time before the wedding. If it’s left too late, one side could argue they entered the agreement under emotional pressure.

Many people are still sceptical of prenuptial agreements, preferring to see marriage as an entirely romantic experience. And it’s true that prenups are not for everyone. However, for couples that do have an eye on the bigger picture – and wish to avoid prolonged conflict in the unhappy event their marriage should break down – prenups are something to consider.

As there are no hard and fast rules, it is up to a couple to decide what they want the agreement to record. Examples include:

• who will live where
• who will take immediate ownership of certain assets or will they be divided later and if so how and when
• what level of financial support (maintenance) will be provided to one or other and for how long
• what level of financial support (maintenance) will be provided for any children of the relationship
• who children should live and spend time with
• when will a divorce take place and how will it be funded

One of the main advantages a written agreement is it’s easier for you both to be sure you understand what you’ve agreed. Thus it can help to keep a separation as constructive as possible in the circumstances. A Court is likely to uphold the terms of a Separation Agreement where both parties have provided to each other full and frank disclosure of their financial circumstances and they have each had independent legal advice of the terms and there has been no subsequent significant changes.

Separation agreements cannot achieve the same degree of finality as a court order as they cannot bring financial claims on divorce to an end. Only an order in divorce proceedings (a ‘Consent Order’) can do this. Either partner can still go to court to change the agreement. This is why it’s so important to have a separation agreement drawn up professionally, as any ambiguous or confusing wording could make it more likely that conflict will arise in future.