Unmarried cohabitation separating

What does a cohabitation agreement regulate?

A cohabitation agreement contains the arrangements that partners made at the start of the cohabitation regarding:

• The division of possessions, assets, and debts upon termination of the relationship.
• The handling of the joint home.
• Any potential spousal maintenance, if one of the partners is financially dependent.
• The costs of the common household.

If there is no cohabitation agreement, or if certain subjects are not regulated therein, then partners must make mutual arrangements. In that case, there are few legal obligations, with the exception of the rules regarding children.

Children upon termination of cohabitation

If partners have joint parental authority over minor children, the same legal obligations apply upon termination of the relationship as in a divorce:

Parenting plan

Partners with joint authority are obliged to draw up a parenting plan. This records agreements regarding authority, residence, contact, and the provision of information. Unlike in a divorce, the parenting plan for unmarried cohabitants does not have to be submitted to the court, unless there is a dispute.

Child support

For children under the age of 21 who primarily reside with one of the parents, the other parent must provide a financial contribution. The amount of child support depends on the payer’s financial capacity and the child’s needs.

No automatic spousal maintenance

Unlike in a marriage, spousal maintenance for cohabitants does not exist by operation of law. Spousal maintenance is only due if this is explicitly included in the cohabitation agreement.

The home upon termination of cohabitation

Owner-occupied home

In the case of a jointly owned home, it must be determined who will take over the property or whether the property will be sold. If one of the partners takes over the home, the other usually receives half of the equity and the remaining partner must put the mortgage in their own name. The bank assesses whether this is financially feasible.

If one partner has invested more capital in the home than the other, or if there is a discussion about the division of common costs, a lawyer or mediator can help to reach a clear division.

Rental property

In the case of a rental property, the rights depend on the names on the lease agreement:

• If the rental property is in both names, both have the right to stay. If one of the partners wants to take over the property, permission from the landlord is required.
• If the property is in one name but the other is a co-tenant, both can claim the right to rent. Departure must be communicated to the landlord in writing.
• If the property is in only one name, the other in principle has no right to the property. In exceptional cases, the court can assign the right to rent to the parent with whom the children reside.

Dividing assets and possessions

Upon termination of a cohabitation relationship, the jointly accumulated assets must also be divided. Think of:

• Joint bank accounts and savings accounts.
• Jointly purchased household effects and valuable possessions.
• Debts and current loans that were entered into jointly.

If you have a cohabitation agreement, the arrangements made therein regarding the division of assets are leading. Without a contract, partners must arrange this between themselves. If one of the partners has contributed more to the accumulation of joint assets, this may give rise to a right of reimbursement. Depending on the circumstances, legal guidance is recommended.

When is legal guidance advisable?

Legal guidance when terminating a cohabitation relationship is particularly useful when:

• There is a jointly owned home with equity or a mortgage.
• There are children with questions about authority, residence, or maintenance.
• There is no cohabitation agreement and a discussion arises about the division of assets.
• One of the partners has invested more than the other and claims a reimbursement.
• There are debts that were entered into jointly.

An advisory meeting provides insight into your legal position and the steps applicable to your situation.

Based on Real Cases

In one case, Simmelink Lawyers assisted a cohabiting couple who did not have a cohabitation agreement when terminating their relationship. There was a dispute regarding the division of the jointly owned home and the question of whether one of the partners was entitled to compensation for additional investments. By mapping out the legal situation and analyzing the value development of the home, a substantiated division could be proposed that was accepted by both parties. Every situation requires its own assessment.

Written by Carla Simmelink, family law lawyer at Simmelink Lawyers.

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