In some situations you may want to have the protection of a Cohabitation or Separation Agreement. The purpose of these documents is to set out the basis of your agreed cohabitation or separation. The drafting of these documents are similar as you will need to provide full instructions about your personal and financial
circumstances for the documents to be accurately drafted.
Cohabitation Agreements Same-sex or different-sex partners who live together may want to regulate the terms of their cohabitation by entering into a cohabitation contract. Cohabiting parties should consider entering into both a cohabitation contract and also a deed of trust in relation to any joint property. A deed of trust may be entered into where one party is the sole legal owner and the other partner has a financial interest or (more usually) where the parties are joint legal owners in equal or unequal shares.
It is important that each person receives independent legal advice to ensure they fully understand the potential effects of the agreement. We can recommend solicitors to the other person so that he/she can take independent advice.
There must be a full and frank exchange of financial information and it is important to attach a schedule of both parties’ financial positions to the agreement. Where there are children involved, consideration will need to be given as to how they will be provided for during the cohabitation and in the event of separation.
If your circumstances change significantly, the agreement should be reviewed and we always recommend a review provision to deal with this. For example, upon the birth of any child, if either party becomes unable to work or if there is a substantial change in assets. This is to avoid the suggestion that the agreement fails to take all the relevant circumstances into consideration.
Separation Agreements We can advise you on a Separation Agreement which can be used where you are unmarried and wish to regulate your separation or it can be a holding position if you do not have grounds for divorce or wish to delay issuing divorce proceedings for any reason.
A Separation Agreement will need to cover how you wish to deal with your financial affairs, children and future divorce proceedings. Both of you will need to have independent legal advice for the separation agreement to be considered legally binding. There is no way of guaranteeing the court will give effect to the terms of a separation although following the Supreme Court decision in Radmacher the court will have regard to an agreement which fulfills the requirement of ‘fairness’. At Rix & Kay we will ensure your Separation Agreement is drafted to ensure you consider all eventualities.