동거 계약서 작성
법적으로 구속력 있는 동거 계약서를 준비하고 실행하는 방법.
개요
England and Wales does not recognise 'common law marriage'. Cohabiting couples — however long they have lived together — have no automatic financial claims against each other on separation equivalent to those available on divorce. When a cohabiting relationship ends, property disputes are resolved under trust law (TOLATA 1996) and contract law, not family law. A cohabitation agreement (also called a living together agreement) is a contract between unmarried partners setting out how property, finances, and other matters will be dealt with during the relationship and on separation. A well-drafted agreement, supported by independent legal advice for each party, will be treated by the courts as a binding contract. Without one, separation can be costly and uncertain.
이 절차를 사용할 수 있는 사람
- You are likely eligible to use this guide if your situation involves creating a cohabitation agreement.
- You have a genuine legal basis for the matter (contract, tort, statutory right, etc.).
- You have made reasonable attempts to resolve the matter directly with the other party first.
단계별 절차
Identify Assets and Financial Circumstances
Before drafting the agreement, each partner should provide full financial disclosure to the other. This includes: all property owned (whether jointly or solely), savings and investments, pensions, debts, income, and any business interests. Full disclosure is essential — an agreement entered into without proper disclosure may be set aside by a court.
- List all assets individually, including assets brought into the relationship and those acquired jointly
- Consider how you will share household expenses during the relationship — an income-sharing arrangement prevents disputes later
- Identify any property that one partner owns solely and which they wish to protect on separation
- If one partner is contributing more to a jointly purchased property, the agreement should reflect the intended beneficial interests
Agree the Key Terms
The core terms to address in a cohabitation agreement include: ownership and beneficial interests in the shared home (particularly if bought jointly), how mortgage payments will be allocated, treatment of improvements to the property, ownership of contents, financial support (if any) on separation, treatment of savings and debts, and arrangements for any children. The more specific and clearly drafted the agreement, the more effective it will be.
- If you are buying a property together in unequal shares, consider a Declaration of Trust alongside the cohabitation agreement
- Address what happens if one party's circumstances change significantly — e.g., one partner stops working to care for children
- Include a clause about how future disputes will be resolved (e.g., mediation before litigation)
- Consider what happens if one partner dies — the agreement does not replace a will
Instruct Solicitors — Each Party Needs Independent Advice
For a cohabitation agreement to be enforceable and to withstand challenge, each party should instruct their own independent solicitor to advise them. One solicitor cannot advise both parties — this creates a conflict of interest. Each solicitor advises their client on the effect of the agreement and confirms that the client understands and freely agrees to the terms. This independent advice process is key to demonstrating that there was no undue influence or duress.
- Do not instruct the same solicitor — this undermines the agreement's enforceability
- Tell your solicitor about any pressure (however mild) from your partner to sign — an agreement must be freely made
- Both parties should receive the draft agreement at the same time and have an equal opportunity to negotiate
- Negotiate before instructing solicitors where possible — it saves costs
Draft and Review the Agreement
One solicitor (usually the solicitor for the party with more assets to protect) will draft the agreement. The other party's solicitor will review it and may propose amendments. The agreement should be in plain English and cover all agreed matters comprehensively. Both solicitors should confirm that their client understands the agreement before execution.
- Check that the agreement covers all assets — gaps can be exploited on separation
- Ensure definitions are clear: what constitutes 'the property', 'relationship breakdown', and 'joint assets'
- Include a review clause — the agreement should be revisited on major life events (birth of a child, purchase of a new property, inheritance)
- The agreement should address what law governs it — English law for couples in England and Wales
Execute the Agreement
The agreement should be signed as a deed (with a witness for each signature) to give it the strongest legal effect. Each party signs in the presence of their own solicitor (or another witness). Execution as a deed means the agreement is not affected by lack of consideration. Both parties should keep original signed copies and provide copies to their solicitors.
- Do not sign if you feel pressured or if you have not read and understood the agreement
- Both parties should sign at the same time (or as close to it as possible) to avoid either party arguing they had not yet signed
- Update the agreement when your circumstances change — major life events should trigger a review
- If you subsequently marry, the cohabitation agreement is superseded by matrimonial law; consider a pre-nuptial agreement
비용
중요 경고
There is no 'common law marriage' in England and Wales. Without a cohabitation agreement and a will, your partner may have no right to your assets if you die or if the relationship ends.
A cohabitation agreement that appears unfair or was signed under duress or without independent legal advice may be set aside by the court. Each party must have independent solicitor advice.
A cohabitation agreement does not automatically address what happens if one partner dies — you need a will as well.
If you have children together, parental responsibility, child arrangements, and child maintenance are governed by statute and cannot be ousted by a private agreement.