A cohabitation agreement or a “common law partner agreement” is a written contract between unmarried couples who live together but choose not to be married. The agreement describes their property rights and financial obligations during and after the time they reside at the same premises.
Key Takeaways
- Purpose: Encourage clear communication and protect each partner’s assets
- Need for Updates: Essential as partners’ living preferences and needs change
- Consequences Without One: Undesirable division of jointly owned property if the relationship ends
- What Is a Cohabitation Agreement?
- The Legality of Cohabitation Agreements
- When to Use a Cohabitation Agreement
- Benefits of a Cohabitation Agreement
- What to Include in a Cohabitation Agreement
- Legal Differences: Cohabitation vs. Marriage
- States That Recognize Common-Law Marriages
- How to Write a Cohabitation Agreement
- Cohabitation Agreement Sample
- Related Documents
What Is a Cohabitation Agreement?
A cohabitation agreement or a living-together agreement is a legal document that describes the property rights and financial obligations of an unmarried couple who lives in the same residence. This contract dictates their arrangement while together and explains what happens if the relationship ends.
A couple begins creating this agreement by meeting to discuss their desired terms and conditions. Once they concur on the terms, they can draft and sign the agreement.
The Legality of Cohabitation Agreements
A cohabitation agreement can be legally binding under certain conditions. Both parties must sign it voluntarily without force and clearly understand its terms. The agreement must also adhere to the regulations of the jurisdiction where the parties reside.
If the parties are unsure about abiding by legal requirements, they should seek independent legal counsel to ensure compliance. Furthermore, they can seek the signatures of witnesses or a notary public to improve its validity.
If a relationship ends and the parties have a dispute, a court can enforce the document. A court will typically enforce a cohabitation agreement if it complies with public policy and doesn’t document illegal terms.
When to Use a Cohabitation Agreement
Here are some cases when parties would use a cohabitation agreement and examples:
- Before Moving in Together: Imagine a couple, Jack and Rebecca, who want to move in together after dating for two years. They draft a cohabitation agreement to clarify their individual financial responsibilities and contributions before they move in. They record the division of rent payments, utilities, and other shared expenses.
- When Buying Property Together: Penny and Alex plan to buy a house together but aren’t married. They write a cohabitation agreement to document their respective shares in the property, who will pay the mortgage payments, and what they’ll do with the property if they separate.
- When One Partner Contributes More Financially: Sharon makes significantly more than her partner, Samuel. They enter into a cohabitation agreement to specify the portion each partner will put toward household expenses and how they’ll handle finances if they separate. They will recognize Samuel’s financial dependence on Sharon.
- When One Partner Has Substantial Assets or Debts: Christopher has a large sum of savings, while Megan has significant credit card debt. They enter a cohabitation agreement to ensure that Megan’s debts remain her responsibility.
- When There Are Children Involved: Timothy and Maria have children from previous relationships and plan to move in together. Their cohabitation agreement discusses how they will manage finances relating to their children and custody arrangements. They will address how they can prioritize their children’s needs if they separate.
- In Case of the Dissolution of the Relationship: Daniel and Jamie have been living together for several years, and things are going well. While they’re on good terms, they compose a cohabitation agreement that explains the conditions of asset division and financial responsibilities if their relationship ends.
Benefits of a Cohabitation Agreement
Benefits
- Provides some legal protection but doesn’t bind couples to state and federal marriage laws
- Clearly defines financial responsibilities
- Protects ownership of individual assets
- Offers methods for dispute resolution
- Safeguards a partner from the other’s debt
- Gives peace of mind in case a relationship ends
What to Include in a Cohabitation Agreement
A simple cohabitation agreement should generally have at least the following elements:
- Estate Planning: Explain how present or future property will be handled in case one partner passes away while the couple is still together.
- Financial Contributions: Figure out how you and your partner will pay for household expenses. Depending on your financial situation, it may make sense to divide them equally. Alternatively, you may allocate expenses according to each partner’s income or combine all your resources into one account and use them to pay expenses when they arise.
- Debt Responsibility: Decide which debts will be individual and joint, ensuring you have a plan for how the parties involved will handle these debts if the relationship ends.
- Support Arrangements: Determine if one partner will financially support the other if the relationship ends.
- Retirement Planning and Savings: Establish how you two will share retirement savings and benefits and designate retirement account beneficiaries.
- Property Ownership: Decide how you’ll divide property accumulated before the relationship, property acquired together, and property acquired via an inheritance or gift.
Legal Differences: Cohabitation vs. Marriage
Refer to the table below to see how cohabitation differs from marriage, as you may discover the need for a cohabitation agreement if you live with a partner and you aren’t married:
| Cohabitation Agreement | Marriage | |
|---|---|---|
| Who Can Enter | No requirements. Anyone can create a cohabitation agreement | Numerous requirements which can vary depending on your state, e.g. marriage license, age minimums, a ceremony, officiator, witnesses, etc, |
| Termination | Can be terminated informally but can have the same emotional cost as the end of a marriage. | Requires the involvement of the court, e.g. legal separation, divorce and can be of great financial and emotional cost. |
| Property Division | Can divide property if outlined in the agreement but requires legal workarounds to have the same property protections as a marriage | Has stronger legal protections in place for the division of property |
| Right to Alimony | Partners can only get financial support if outlined in the agreement | Spouses may have a legal right to alimony |
| Decision-Making | Without legal workarounds, only the relative of an ill or incompetent partner has the authority to make financial or health decisions on their behalf | Spouses have the authority to make legal decisions for each other if one falls ill or incompetent |
| Inheritance Rights | Partners have no inheritance rights unless specified in the deceased's partner's will | Spouses have a legal right to inherit a deceased spouse's property |
| Paternity Rights | The father in a cohabiting relationship may have to prove their paternity through blood tests and legal methods | A father in a marriage has paternity rights by default |
| Child Support | There is no legal obligation for the father in a relationship to support children during cohabitation, but it becomes a requirement when paternity has been proven | The father is legally obligated to support children during the marriage |
States That Recognize Common-Law Marriages
A common-law marriage is when a couple doesn’t have a marriage license but is still legally married. A common-law marriage meets the following requirements [1] :
- Both partners consider themselves married.
- The partners live together.
- The partners present themselves as a married couple.
Depending on where they live, couples in a common-law marriage may have benefits similar to those in traditional marriages. However, some states limit the benefits of common-law marriages. You can use a cohabitation agreement to clarify property and financial rights in the relationship.
Explore the states that allow common-law marriages to some extent:
| State | Conditions Under Which Common-Law Marriage Is Allowed | Laws |
|---|---|---|
| Alabama | Recognizes common-law marriages if they began before January 1, 2017. | Ala. Code § 30-1-20 |
| Colorado | Recognizes common-law marriages if they began before January 1, 2006. May recognize later common-law marriages if both parties are at least 18 and the marriage doesn't violate other laws. | Colo. Rev. Code § 14-2-109.5 |
| Georgia | Only recognizes common-law marriages if they began before January 1, 1997. | Ga. Code § 19-3-1.1 |
| Idaho | Only recognizes common-law marriages if they began before January 1, 1996. | Idaho Stat. § 32-201 |
| Iowa | Intends for common-law marriages to be for dependent support, but it's not prohibited in other cases. | Iowa Admin. Code r. § 701-73.25 |
| Kansas | Recognizes common-law marriages as long as both parties are at least 18. | Kan. Stat. § 23-2502 |
| Montana | Doesn't invalidate or prohibit common-law marriages. | Mont. Code § 40-1-403 |
| New Hampshire | Recognizes common-law marriages when the couple acknowledges each other as husband and wife and lives together for at least three years. | NH Stat. § 457:39 |
| Ohio | Only recognizes common-law marriages if they began before October 10, 1991. | Ohio Rev. Code § 3105.12 |
| Oklahoma | Recognizes common-law marriages if both parties are at least 18, not related by blood, live together, and are financially interdependent. | 1981 OK CIV APP 21, 629 P.2d 808 |
| Pennsylvania | Only recognizes common-law marriages if they began before January 1, 2005. | Pa Stat. § 23.1103 |
| Rhode Island | Recognizes common-law marriages if the two partners live together and present themselves as married to the public. | RI Gen. Stat. § 15-1-7 |
| South Carolina | Recognizes common-law marriages with no specific limitations. | SC Code § 20-1-10 |
| Texas | Recognizes common-law marriages if both parties consent to the marriage, tell others they're married, and live together. | Tex. Fam. Code § 2.401 and Tex. Fam. Code § 1.101 |
| Utah | Recognizes common-law marriages if the parties live together and present themselves as married to others. | Utah Code § 30-1-4.5 |
How to Write a Cohabitation Agreement
Step 1 – Fill in Both Parties’ Information
The first step in writing a cohabitation agreement is filling in the parties’ information, including your names and current or intended addresses. You can also record the date you wrote the agreement and the governing state.
Step 2 – Include the Current Circumstances
This section typically refers to whether either party has any children from previous relationships. You should specify if there aren’t any kids. If there are, you need to write down their names and ages.
You should also clearly outline the obligations of each parent to their children. Unless one partner obtains a court order of adoption, the agreement assumes each person is responsible only for their children.
Step 3 – Establish an Effective Date
Discuss with a partner and decide when the cohabitation agreement will come into effect.
IMPORTANT
Remember that both of you need to have begun cohabiting by this date. Otherwise, the contract will become null and void.
Step 4 – Provide Property Information
You can list the property you acquired before becoming a couple you want to treat as separate property, including financial assets, household goods, vehicles, and other items.
Any property listed as “separate” in the cohabitation agreement will not be divided with the other person if death or separation occurs.
Your shared property, or joint property, is a property that both parties jointly own. These will be divided between both parties upon death or separation. Both parties can agree upon how to divide this property before signing the agreement.
Step 5 – Include Any Debt Information
Although not necessary, listing your debts lets you clearly detail who is responsible for which debts.
Without a cohabitation agreement, you may have to assume your partner’s debts if you split up.
You should also specify any shared debts you and your partner have. Typically, shared debt occurs due to a joint purchase secured by a joint loan for items like a vehicle or home.
Step 6 – Specify Household Contributions
Shared living expenses can be divided, with each party paying different percentages or dollar amounts depending on the situation. You can also include information about whether joint accounts will be used and the ownership interests of purchases made through that joint account.
Step 7 – Include Termination Terms
You should provide the terms and protocols for the agreement’s termination.
Step 8 – Sign the Agreement
Once you have filled in the other sections, both parties should sign the agreement so it becomes a legally binding contract.
Cohabitation Agreement Sample
Download a free cohabitation agreement template as a PDF or Word file below:
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