When should You and Your Partner Consider establishing a Cohabitation Agreement?
There seems to be general confusion and misunderstanding regarding the different types of relationships that people involve themselves in whether it is marriage, domestic partnership or cohabitating relationship. Many couples mistakenly believe that cohabitating with someone for a few years will establish a common law marriage.
A common law marriage provides couples with the same rights as a formalized, legal marriage. The State of California does not recognize common law marriages. In 2025 there are only a handful of states that still recognize common law marriages.
A cohabitation agreement is a legal contract for unmarried individuals living together, which outlines their rights, responsibilities, and duties to each other. It provides a framework for managing their shared lives, finances, and ownership interests in property that may be acquired together. This type of agreement defines expectations and helps prevent potential disputes during the relationship or if the relationship terminates.
A cohabitation agreement is not just for memorializing an agreement between romantic partners. Cohabitation agreements can be tailored to the specific needs of the individuals involved, including romantic partners, roommates, friends, or siblings sharing a home or other assets.
If you are in a situation where you will be living with another and you want to avoid misunderstandings during and if the situation terminates, Law and Mediation Office of Destinee Tartuffe invites you to schedule a consultation to explore how creating a legally binding cohabitation agreement can help to get you started on the right foot and reduce the potential for a highly contested court proceeding should the relationship terminate.
Understanding Cohabitation Agreements for romantic partners
Cohabitation agreements are particularly relevant for couples who share significant assets, have joint accounts, or plan to purchase property together. The agreement can formalize any financial and property agreements and will help to establish clarity while protecting the assets of each individual.
Engaging in such an agreement offers legal safeguards that are not automatically extended to unmarried couples. These types of agreements assist in reducing the likelihood of conflicts and for some issues provide a pre-determined resolution if the relationship ends.
What does a Cohabitation Agreement cover?
A cohabitation agreement can cover a wide range of topics that arise in relationships. Topics such as defining ownership interests in both real and personal property, and specifying the real and personal property interests that remain separate and which will be jointly owned. The agreement can detail how assets and debts acquired during the relationship will be divided, including joint bank accounts, investments, and credit card liabilities.
Couples, who hold themselves out as husband and wife under such agreements can include provisions for financial support, outlining whether one partner will provide financial assistance to the other if the relationship ends. The agreement can also clarify responsibility for household expenses like rent, utilities, and groceries, and address arrangements for pets.
Limitations of Cohabitation Agreements
Cohabitation agreements have limitations regarding what they can legally cover. For example: the agreement cannot include provisions related to child custody, child support, or visitation rights. These issues are reserved to the jurisdiction of the Family Law courts. If a cohabitation agreement must be enforced such an agreement falls under the jurisdiction of the Civil courts. A cohabitation agreement cannot promote illegal activities or waive certain fundamental rights of either individual. Courts will not enforce provisions deemed unlawful, unjust, or against public policy.
General Steps to Creating a Cohabitation Agreement
Several steps are required to create a valid and enforceable cohabitation agreement:
· While oral agreements may be enforceable, oral agreements are difficult to prove should the need arise to enforce such an agreement. Law and Mediation Office of Destinee Tartuffe support memorializing agreements the individuals make in writing to avoid any confusion should the relationship terminate. There are some issues such as agreements about real property that must be in writing.
· Both parties are encouraged to obtain independent legal advice from an attorney of their own choosing to ensure they fully understand each provision and the intended and potential unintended consequences. With each party having independent counsel it helps prevent claims of coercion or undue influence, which could invalidate an agreement.
· It is essential that each party provides a full disclosure of all assets and liabilities as a lack of transparency can render the contract void. The degree of disclosure required may vary depending on the type of relationship that is being established. For example an agreement that would provide for support of one of the parties if the relationship ends requires more in-depth financial disclosures than an agreement between roommates.
· The agreement must be signed by both parties, and depending on the jurisdiction, it may require witnesses or notarization to be legally binding.
Are Cohabitation Agreements Legally Enforceable?
· A cohabitation agreement is legally enforceable in court, provided it meets the specific criteria outlined by statutory law and any case precedent, if a dispute arises between the parties, courts will be asked to evaluate whether the agreement was created following the legal requirements, and if the provisions are deemed fair and reasonable.