Cohabitation agreements are contracts made by unmarried people who live (or plan to live) together. In 1998 the Massachusetts Supreme Judicial Court ruled for the first time that “unmarried cohabitants may lawfully contract concerning property, financial, and other matters relevant to their relationship. Such a contract is subject to the rules of contract law and is valid even if expressly made in contemplation of a common living arrangement….” (Wilcox v. Trautz, 427 Mass. 326, 332.)
A cohabitation agreement must be in writing to be valid. However, “if the parties eventually were to marry, the [cohabitation] agreement is no longer valid, and the rules concerning antenuptial, postnuptial, or separation agreements will then govern any agreement thereafter entered into by them.” (Wilcox at 332, footnote 4.)
Since the parties in Wilcox had no children, their cohabitation agreement did not address any child issues. Regarding agreements that do concern children, the court plainly stated “we would not, in any event, enforce those [agreements] that do not conform to the children’s best interests.” (Wilcox at 334, footnote 7.)
Parties to a cohabitation agreement do not enjoy the same legal protections as married couples. If the parties to a cohabitation agreement dispute its enforceability, a judge will resolve their disagreement on the basis of contract law, not divorce law. Cohabitation agreements are not governed by the same “fair and reasonable” standard that governs separation agreements.