Ch 12 Cohabitees

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What to put in a cohabitation agreement

Drawing up a cohabitation agreement can help to set down some practical guidelines for the relationship between you and your partner. Thinking these things through early on should make things much clearer and less painful in the event of a break up.

Everyone’s personal situation is different, which means that each agreement will be different. Some of the things you should consider including in a cohabitation agreement are:

1. The purpose of your agreement: do you intend the agreement to be legally binding or merely a statement of your expectations?
2. The length of time the agreement will cover.
3. Arrangements for children – for example, arrangements for maintenance if you should separate, agreement on having contact.
4. How you will treat property owned by either of you at the beginning of the relationship.
5. Will property acquired during cohabitation be shared equally or in proportions set out in the agreement?
6. How will you deal with debts you have at the beginning of the relationship? Consider making a statement of what each currently owes.
7. Inheritance and wills – what, if anything, will you leave to each other (although it is still important that you both make a will).
8. How you will resolve disagreements – for example, via professional conciliation or a named mutually agreed conciliator.

In the event of a break up however, if you are not able to sort matters out amicably, and you find you are in dispute over how to work things out, you will need to use the cohabitation agreement in a legal setting. It is a type of “contract” and it is therefore important that it meets certain legal criteria that apply to all contracts. (But remember: although courts are showing more willingness to take account of such agreements there is still no certainty that they would enforce one.)

How to make a cohabitation agreement

Your agreement is more likely to be treated seriously by a court if you follow these guidelines. The document should be:

1. In writing
This shows that you intend to be legally bound and the agreement can simply state you have such an intention.
2. Clear and unambiguous
You have to be very specific about your intentions. For example, if part of the agreement relates to one of you making financial provision for the other, you need to set out where the money will come from and how it will be paid. Using vague or general terms will make the agreement ‘void for uncertainty’.
3. In the form of a deed
This means that it is a legal document. The agreement needs to record that it is being signed as a deed in the presence of independent witnesses to your signatures; be in writing and dated.
4. Be made after taking independent legal advice
This is particularly important if the terms of the agreement seem to favour one of you over the other. Otherwise, it may be argued that one of you tried to disadvantage the other unfairly.

See also Q & A Living Together Agreements