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Unmarried Couples: How to secure your living together rights

View profile for Andrew Stynes
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Unmarried Couples: How to secure your living together rights

An unmarried couple who live together often assume they have some legal rights to the property, especially if they both contribute to it.

However, without a legal agreement in place your rights aren’t necessarily protected in the event of a relationship breakdown and you could lose out.

So, in his latest article, Family Partner Andy Stynes looks at the different type of agreements that can be used to set out ownership of property and outlines which is best.

What is a Cohabitation Agreement?

A Cohabitation Agreement (or ‘living together arrangement’) is a legally binding document that details all the financial and living arrangements, for both the present and future, between you and your partner.

It essentially:

  • Arranges you and your partner’s assets, setting out ownership
  • Outlines what financial responsibilities you will have to each other in the event of a break-up
  • And describes how joint assets, such as property, cars etc, will be distributed were you to split-up

Is a declaration of trust the same as a Cohabitation Agreement?

A Declaration of Trust (DoT) is a legally binding document which may set out each person’s contribution towards a property, and outlines how it would be split in separation.

A DoT is not the same as a Cohabitation Agreement, the main difference being that it deals with property ownership only and dictates how any proceeds of sale will be divided if the property is sold, whereas a Cohabitation Agreement can include all financial assets.

Declarations of Trust can also be used can be used to protect a parent’s investment in their child’s home, and give rights to people who aren’t named on the mortgage.

Related: Our house is in my partner's name, what are my rights

What about pre-nuptial agreements?

A prenuptial agreement (‘pre-nup’) is an agreement made between two parties before marriage or civil partnership takes place. It can be used to set out how the couple wish their assets, including property, to be divided between them if they later separate or divorce.

A pre-nuptial agreement should be signed at least 28 days before the marriage or civil partnership with all assets and property owned by both parties disclosed. Alternatively, a post-nuptial agreement could be made following the marriage/civil partnership.

Read our article about post-nuptial agreements here.

A pre-nuptial agreement differs from a declaration of trust and a cohabitation agreement because it is only available to partners who are intending to get married.

What are the benefits of cohabitation agreements?

Cohabitation agreements provide unmarried couples with a legal basis for their arrangements so any potential litigation can be avoided if the relationship does break down.

Not only does set out property arrangements, but it also includes details of all financial assets.

In addition, it allows both partners to have a clear understanding of what is expected of them, including what their duties and obligations to one another are.

Lastly, in a cohabitation agreement, you choose what to include or exclude from the agreement; and this can be as much or as little information as you like.

What are the disadvantages of cohabitation agreements?

There is a risk that a cohabitation agreement may not be legally binding if it is not drafted and executed properly and signed as a deed. It is therefore essential to take the correct advice from the outset.

There is further risk of the agreement not being legally binding if you do not update the agreement when circumstances change, for example, a further property is bought or you have children.

For this reason, we’ll always recommend you take legal advice.

You can find out more about cohabitation agreements, and why you might need one, in our dedicated article here.

What are the benefits of a declaration of trust?

A declaration of trust not only sets out how a property is owned, but also sets out each person’s contribution towards the purchase.

Declarations of Trust can also be used to protect a parent’s investment in their child’s home, and give rights to people who aren’t named on the mortgage.

The document will also make clear how the equity will be split if the property is sold or how much would be needed to buy someone out.

Read our dedicated article: What is a declaration of trust and why do I need one?

What are the benefits of pre-nuptial agreements?

One of the biggest advantages of pre-nuptial agreements is that it provides clarification on what will happen to you and your partner’s assets in the event of a relationship breakdown.

It can also be beneficial to set out who owns what property. Homes purchased before marriage, for example, are classed as ‘non-matrimonial property’ and usually won’t be split during the parties in divorce. A pre-nup can be used to make sure that this is agreed at the outset.

Pre-nuptial agreements are particularly useful for ‘ring-fencing’ assets such as inheritance and pensions, which you would want to keep separate in the event of a divorce.

Lastly, setting out an agreement of this kind in advance can reduce the acrimony involved in divorce as you may not have to set out, and argue over, how assets are split in court.

What are the disadvantages of pre-nuptial agreements?

A pre-nuptial agreement isn’t necessarily legally binding, and if a Court finds an agreement to be unjust, they may deem it invalid.

However, pre-nuptial agreements are usually taken into account and upheld by Courts if they have been carefully negotiated (usually with the benefit of independent legal advice).

In addition, a pre-nup doesn’t account for changes in circumstances – such as the purchase of a new home, for example. You would need to amend and update a pre-nuptial agreement to include any changes in circumstance.

Read more pros and cons of pre-nuptial agreements here.

Which is best a Cohabitation Agreement or a Declaration of Trust?

Generally, one size does not fit all, and couples should consider getting both documents drawn up. This is because a Declaration of Trust is a legal deed that is registered with the Land Registry and only follows a limited framework.

Whereas a Cohabitation Agreement is a contractual agreement which records the parties intention in greater depth in the event of a relationship breakdown.

An all-in-one guide to an amicable Divorce

At Frettens, our bright Family Team have put together a complete guide to ensuring an amicable divorce.

The guide includes the entire process, from beginning to end, the costs involved and advice for children and finances.

If this is relevant to you, please don’t hesitate to download the guide here (it’s free and thousands of people already have their copy).

Bright and experienced Family Solicitors

If you have any questions following this article, or would like to instruct us to assist you, please don’t hesitate to get in touch with our bright Family Team.

We offer a free initial chat for all new clients, so you can speak to us to iron out the details and discuss your circumstances before committing to anything.

You can call us on 01202 499255 or fill out the form at the top of this page to find out more.

The content of this article, blog or video is not intended as specific legal advice. For tailored assistance, please contact a member of our team.