Practical Considerations, Risks & Final Thoughts

Are there any downsides?

1. Legal uncertainty

Cohabitation agreements are generally treated as contracts, but the law in this area is not entirely settled.

Courts are likely to uphold them if they are properly prepared, but they can still be challenged in certain situations, for example if there was:

• Pressure or undue influence

• Misrepresentation or misunderstanding

• Fraud or mistake

For this reason, it’s important that any agreement is carefully drafted and both parties understand and freely agree to its terms.

2. Cost

There is a cost involved in preparing a proper agreement, particularly if your financial arrangements are complex.

However, many people see this as a worthwhile investment when compared to the potential cost of resolving disputes later.

3. A difficult conversation

Raising the idea of a cohabitation agreement can sometimes feel awkward.

It may be perceived as a lack of trust or as planning for the relationship to fail.

In reality, it is simply about clarity and fairness. Framing the conversation as a practical step, much like obtaining an insurance policy, can often help.

When should you put one in place?

There is no strict rule.

If you are buying a property together, it is sensible to have an agreement in place at the time of purchase so everything is clear from the start.

If you are already living together, it is never too late to put one in place.

The key point is that the agreement should be entered into freely, without pressure and at a time when both of you are able to make considered decisions.

Cohabitation agreement or declaration of trust?

You may also hear the term a declaration of trust. This is a separate legal document that records how a property is owned.

A declaration of trust is usually very specific. It sets out each person’s share in the property. A cohabitation agreement, on the other hand, is broader. It can include:

• Property ownership

• Mortgage and bill payments

• What happens if one person wants to sell

• Arrangements for buying out the other’s share

• Ownership of personal items

• Financial support after separation

• Arrangements for children

In many cases, people choose to have both documents, provided they are consistent with one another.

Looking ahead: possible changes in the law

The law relating to cohabiting couples is under review and there is growing recognition that it may not adequately protect modern relationships.

The government has indicated that it intends to consult on potential reforms, with a view to improving legal protection for unmarried couples. Further developments are expected.

Final thoughts

A cohabitation agreement is not about expecting a relationship to fail, rather it’s about being clear, fair, and prepared.

By setting out your intentions in advance, you can reduce uncertainty, protect what matters to you and focus on building your life together with confidence.

If you are considering one, it’s always sensible to take independent legal advice so that the agreement reflects your circumstances properly and stands the best chance of being upheld if ever needed.

This provides an overview of the practical considerations involved in a cohabitation agreement, including potential risks, timing and related documents. Taking advice early and approaching the process openly can make a significant difference.

Are you considering putting a cohabitation agreement in place? Elizabeth Stocker is a consultant solicitor specialising in family law and cohabitation agreements. She can help ensure your agreement is clear, fair and properly structured. Get in touch for a confidential discussion.