Contracts

Writing up a legal agreement may keep things simple in the future

Keep any legal agreements you make up to date

Couples who marry or register a civil partnership acquire certain legal rights and responsibilities regarding their relationships. If a married or civil partnered couple choose to end their relationship, they need to do so formally through the divorce or dissolution process.

A cohabiting or unmarried or uncivil partnered couple can separate without having to go through any formal process, but splitting up can be more difficult for them as there is no recognised structure for sorting things out.

Not married or not civil partnered

Forming a cohabitation agreement, although not legally binding, can help to set down some practical guidelines for the relationship between you and your partner.

You can include a wide range of matters in the agreement, which cover the things that are important to you and your partner. They can cover financial matters, how property is held and how disputes may be settled. The advantage of drawing up an agreement like this is that it makes both of you consider, before there is any dispute, your expectations of the relationship and how you would handle the situation if the relationship breaks down.

Although courts are showing more willingness to take account of such agreements there is still no certainty that they would enforce one.

A cohabitation agreement, however, does provide a good starting point.

If you and your partner do decide to create a cohabitation agreement, it is important that you both do so freely and voluntarily, in full knowledge of each other’s financial and other circumstances, and after taking independent legal advice.

Finally, it is important, just as with a Will, to keep your situation under review, and to alter the agreement from time to time as your circumstances change.

Married or civil partnered

Even if you have decided to get married or register a civil partnership, you may want to create an agreement about how you would resolve matters in the event of divorce or dissolution.

You can do this by entering into a pre-nuptial or pre-civil partnership agreement. It is also possible to create a post-nuptial or post-civil partnership agreement after you have been married or civil partnered a while.

As with cohabitation agreements, there is no certainty that the court would enforce your agreement.

And again, it is important to keep such an agreement under review, making sure that it reflects any changes in your situation.

Cohabitation agreement

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:

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

In writing

This shows that you intend to be legally bound and the agreement can simply state you have such an intention.

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’.

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.

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.

Pre-nuptial or pre-civil partnership agreements

Pre-nuptial or pre-civil partnership agreements can be entered into to protect your interests and assets in the event of divorce or dissolution.

Such agreements are, however, not strictly enforceable as contracts as they are not legally binding in the UK. They may, on the other hand, be taken into account to arrive at a correct resolution of the financial and property matters between you and your partner.

The court, when dealing with finances and property during divorce or dissolution, will consider what weight should, in justice, be attached to your agreement. The agreement cannot prevent the court from using its powers to override your “contract” because the first duty of the court is to arrive at a solution that is fair to you both.

A pre-nuptial or pre-civil partnership agreement will only be treated as “an agreement” if the following three elements are present:

  • Both parties obtain independent legal advice.
  • Neither party is put under pressure to agree to the terms, and the agreement is entered into fairly.
  • Both parties have full knowledge of each other’s financial position.

Getting married or registering a civil partnership

If you do decide to get married or register a civil partnership, these are the formal procedures you have to follow:

  1. Give notice of your intention to marry or register a civil partnership. This costs £33.50 per person. You do this at your local Register Office, even if you plan to marry or register your partnership elsewhere. Both of you must have lived in England or Wales for a full seven days before you give notice on the eighth day. Your notice needs to be displayed on the notice board at the register office for fifteen days.
  2. The Superintendent Registrar (or Registrar in Northern Ireland) will give you permission to marry or register your civil partnership in any Register Office or other approved location in any district.
  3. You must give notice of where the marriage or registration is to take place.
  4. If you do not marry or register your civil partnership within 12 months of giving notice, the permission will lapse and you will have to start the process again from step 1.

Information required for giving notice of intention to marry or register a civil partnership

  • You and your partner’s name, address and nationality (ideally in the form of your passports).
  • Your dates of birth.
  • Evidence of your address.
  • The name and occupation of your father and your partner’s father (it is possible to leave this section blank if you do not have the information).
  • Proof that you are free to marry or register a civil partnership, if one or both of you has been married before. This can be a death certificate, if the spouse or civil partner died, or a decree absolute or final order of dissolution of a civil partnership.

Further information

Directgov has more information about getting married and registering a civil partnership in the UK, finding your local register office, as well as information about gaining and changing certificates

Get Hitched – A guide to civil partnership produced by Stonewall

Advicenow has a guide on Living Together

The full text of the Civil Partnership Act is available on the Legislation.gov website

Policy and legislation relating to lesbian, gay, bisexual and transgender equality can be found on the Home Office website