Hypothetical situation: me, my partner (not married) and our 5 month old daughter move in together on a joint mortgage. We last 5 - 10 then decide we want to go our separate ways. If we have a cohabitation clause that states \"in the event of [url=Resources/Library/Cohabitation-and-Separation_s33_m1852.html ]separation[/url], either party can buy the other one out of the \"marital home\". If this is not feasible, the sale of the property will then enforced. In the event of the court/judge evicting the father out of the \"marital home\" under the children act, the mother agrees that the father will not be liable to pay half of mortgage.
Is this likely to be enforceable/upheld by a court/judge? And how likely is it in the event of an unmarried couple with a child that a judge would not only evict the father out the property, but still force him to also pay half of the mortgage on top of child maintenance
payments? I don't mind leaving the property and keeping my share in it until my daughters of age, but paying half of a mortgage for a place I don't live in on top of child maintenance is too much. All help appreciated, thanks.
The mortgage agreement is with the mortgage company. If it is a joint mortgage you are jointly and severally liable which means if one of the parties does not pay, the other will have to. This applies whether you live in the property or not.
In financial settlement on divorce an indemnity clause can be included in an order. This allows for legal action to be taken to recover arrears that have had to be paid. I imagine this could be included in a deed of trust document setting out arrangements in the event of [url=Resources/Library/Cohabitation-and-Separation_s33_m1852.html ]separation[/url].
Bear in mind that if you are named on a mortgage it may well impact on your ability to obtain another.
If you are going to have any kind of agreement drawn up you should discuss it between you and each take proper legal advice before going ahead.
Thanks for your advice. I've been reading up on cohabitation agreements and I've noticed it says that they won't be upheld/enforced if they are deemed unreasonable or unfair in one parties favour. I understand this is quite vague, and I assume it's a grey area, but what is deemed unfair? For example if I make a cohabitation agreement with my partner saying that if we separate, then the property we are jointly paying a mortgage on must be sold immediately if either party can't buy the other out, but I agree to pay
child maintenance for my daughter. Is this fair? Or would it be deemed unreasonable if my partner was to say she can't afford to live somewhere on her own so she would need to stay in that property and I be forced to leave and still contribute to the mortgage as well as child maintenance etc?