Cohabitation Agreements – Why They are Necessary

I married in 1968. According to Pew Research Center, at the time I married, about 9% of

men and 8% of women over 25 years of age were never married. By 2012, 23% of men and 17%

of women over 25 were never married. The percentage of adults who have never married has

never been higher than it is right now.

Not marrying, however, does not mean that the number of couples has declined. People

are living together, buying property together, sleeping together, having children together and

growing old together just as if they are married. And like married couples, unmarried couples –

gay and straight – break apart. And when they do, there is general havoc as marriage laws don’t

apply. Only the laws of equity and/or property apply.

Most of us have heard about prenuptial agreements. According to the Huffington Post,

prenuptials are on the rise. What’s interesting is that more women are requesting them than ever

before. The rise in prenuptial agreements is clearly due to concern about divorce laws. People

want to control their situations. Without a prenuptial agreement, people who get divorced are at

the whim of the divorce court(s).

Unmarried couples want the same thing. They want to control their destiny too. As a

result, there has been an uptick in cohabitation agreements. Unmarried couples who are living

together can create a number of legal documents. Collectively, these agreements are referred to

as “cohabitation agreements. These agreements can help protect and define their rights as a

couple. At the same time, these agreements can safeguard their individual interests and assets.

Just as married couples can split up, so can unmarried couples. The cohabitation agreements can

address what happens in the event of a split up.

Cohabitation agreements usually discuss waiving a number of rights. The rights include

whether the couple can share in each other’s estates upon their death and whether either party can

claim palimony (a term similar to alimony or maintenance). Usually, there is a waiver of each

other’s separate property. Rights to each other’s pension, profit sharing and retirement accounts

are often waived. What is also waived is the right to claim a common law marriage.

These agreements often discuss what to do when joint assets appreciate in value. They

discuss who contributes what for property and for living expenses and what to do in the event of

a split up. These agreements can discuss whether the couple agree to have pets or whether

smoking is permitted. In short, the agreement sets out the couple’s expectations with respect to

any host of issues. If something is important, it gets put in the agreement.

A cohabitation agreement is a form of legal agreement reached between a couple who

have chosen to live together – whether they are heterosexual or homosexual. A cohabitation

agreement contains documentation for a couple who want to live together. This documentation

is necessary to protect themselves from unnecessary cost and litigation should their cohabitation

break down. They can clearly regulate their property rights and what arrangements might be

made for mutual financial support, dealing with debt, caring for children and other matters that

come up when you are living as a couple.