#17061 - Family Cohabitation - Family Law

Cohabitation Agreement

Nature and effect

• Arrangements that will apply while they are living together and rights on the breakdown of the relationship

• Can deal with ownership of property, finances, children and other matters

• Best not to include trivial or personal matters ie. housework, bedroom

Amendments

• Unequal contribution- but own as joint tenants: suggest tenants in common with unequal shares, benefit to children in previous relationship

• One side pay all mortgage and outgoings

• Formatting

• Drafting on hypothetical situation is pre-mature ie. children (and court will see children’s welfare as most important)

• Recitals: independent legal advice (enforceability), disclosure, details on property (payment, intended use)

• Dispute resolution clause: go into arbitration

• Deed

• Recital- independent legal advice/ FFD/ costs of purchase

• Cl 1- Ok but credit higher %

• Cl 2-6- check instructions e.g. JT/ TIC and %

• Cl 7- Ok, re-number

• Cl 8- Re-number and refer to clause 2/ instructions

• Cl 9-12- check instructions

• Cl 13- Ok?

• Cl 14- not binding and premature

• Cl 15- omit- goes to legal intention

• Missing

  • Recitals as above

  • Pensions

  • Insurance

  • Wills/ LPAs

  • Agreement as to PR

  • % share on sale or valuation mechanism to include non-financial contributions?

  • Review clause

• Schedules

  • Duncan: capital, income, pension, sole contents

  • Emma: capital, income, pension

  • Joint contents

Enforceability and validity once signed

• Timings- sign after moved in to avoid argument ie. undue influence: I only signed it because she would refuse to move in

• TOLATA

• Issues to be considered re validity:

  • Illegality on grounds of public policy- try to avoid

  • Undue influence

  • Intention to create legal relations

  • Certainty

  • consideration

• Enforcement- general rules of contract will apply

• No reported case on enforceability Sutton v Mishcon de Reya 2003 (p.271)

• Advisable to include arbitration clause

• Not suggestion for mediation- as it is not binding

Separation after Cohabitation

Long standing client communicated by email

• No automatic PR as not married father

• Guardianship

• Child Arrangements Order (education, medical, religion, living)

• Contacts

• Child Act S1(2A): presumption on benefit of having both parents

Resolving issues without litigation/ MIAM

How does unmarried Dad get PR? (p.176-179)

• Registration

• PR order

• PR Agreement

• CAO (yes if to live with, maybe if contact)

• Guardianship- CA 1989 s5

Contact

• CAO (s.8)- wants frequent, direct, overnight contact= welfare principle and checklist

• S.1(2A)- presumption that involvement of both parents furthers child’s welfare

Financial...