One area in which couples living together have greater certainty than married couples is in the area of cohabitation agreements, which by contrast with pre- and post-marital agreements, can be enforceable agreements. Recent discussions about pre-marital agreements following the high profile case of Radmacher v Granatino and the current Law Commission consultation process on the future of pre marital agreements have focused on the fact that cohabiting couples have greater autonomy to set out their arrangements and many have suggested that this 'freedom to contract' should be available to married couples.
Despite the fact that these agreements can give real clarity about property ownership, gifts, post death arrangements, child support and many other financial issues and can be enforced by the court, only a minority of couples enter in to any form of cohabitation agreement. Whilst discussions over property, the possibility of separation and death often seem difficult and uncomfortable, as with making a will, the knowledge that arrangements are clear and settled can be reassuring.
The possibilities of change?
Numerous recommendations have been made in the past about developing and co-ordinating the legal position protecting cohabitating couples. The Law Commission's 2007 Report made detailed recommendations for a complete overhaul of the law in this area. Those recommendations were shelved by the last Government and have been rejected by the current Government. For the foreseeable future, therefore, we continue with the situation where cohabitating couples are subject to a patchwork of legal provisions, difficult to navigate and expensive to enforce.
However, because of the strength of properly negotiated agreements in this area of law, it is open to any cohabitating couple to take significant steps towards organising their affairs.
The cost of negotiating and preparing documents at an early stage can be dwarfed by the financial and emotional cost of later disputes. Mediation and collaborative law processes can help with a constructive approach to these discussions and provide certainty and protection against future disputes.