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What is a cohabitation agreement?

A cohabitation agreement is a written agreement that sets out the rules for living together, financial affairs, debt, arrangements for support payments, etc. Such agreements are usually not to include custody agreements between parents, should the couple separate.

Mainly, this type of agreement usually sets out property and financial rights of each of the people in case there is a breakdown of the relationship.

A cohabitation agreement is different from a prenuptial agreement in that it is usually made between two parties that are going to live together without marriage. Whereas a prenuptial agreement is usually made before a marriage takes place.

Is a cohabitation agreement necessary?

There is no legal requirement that two people who want to live together and be in a common-law relationship draw up a cohabitation agreement between themselves.

The issue at the heart of cohabitation agreements should be to create an equitable relationship between the parties, which is why each party should consult their own lawyer when drawing up an agreement.

What are the key issues in cohabitation agreements?

There can be a number of issues enumerated when drawing up a cohabitation agreement. It depends what’s important to the parties. However, the most important issues usually concern property, support payments/ income disparity between the partners.

Property

The rules for married people and people involved in a common-law relationship are usually different when it comes how property is divided post break-up.

For married couples, there usually is provincial/territorial legislation that deals with the matrimonial home and the division of property after divorce.

For common-law couples there often isn’t much in the form of provincial/territorial legislation, which is why a lot of common-law couples choose to have a cohabitation agreement.

The agreement may then be used to decide how to deal with the property.

Support payments/income disparity

These types of agreements are usually used to discuss whether there are spousal support provisions if the couple breaks up. In most provinces there exists an obligation for spousal support payments, if the couple fulfills the requirements of legally being common-law in that province.

The problem comes in where the couple have been living together but they don’t fit the criteria of common-law spouses. If a cohabitation agreement is in place that outlines that there is a right to spousal support, then there is likely a claim even if all the requirements to be considered common-law are not in existence.

In other words, if one person makes more than the other, or it’s decided that one party will stay home with the children, then the cohabitation agreement could outline what the person who stays at home is entitled to receive post break-up.

What can’t I put in a cohabitation agreement?

For many provinces and territories, the courts may not honour custody and access of a child or children in the cohabitation agreement. The reason for this is because the custody and access arrangement in the cohabitation agreement may not be in the best interest of the child or children.

Usually unenforceable clauses, such as morality clauses can also not be included in cohabitation agreements.

It’s important to remember that family law, including issues regarding common-law couples, are legislated by provincial and territorial law. To find out what your rights and obligations are in your province, you should consult the appropriate statute or consult a lawyer. If you want to enter into a cohabitation agreement it’s a good idea to consult a lawyer to make sure the agreement is legally valid.

Read more:

Do You Need a Cohabitation Agreement? Three Key Issues

Marriage Agreements and Cohabitation Agreements