Area of Law: Family Law
Answer # 0122
Cohabitation agreementsRegion: Ontario Answer # 0122
What is a cohabitation agreement?
A cohabitation agreement is a written contract (similar in concept to a marriage contract or prenuptial agreement, or “pre-nup,” for couples who legally marry), which can be made between common-law spouses. Its main purpose is to establish the property rights of each spouse if they separate. Without a cohabitation agreement, the only right that a common-law spouse may have on separation is the right to make a claim for financial support. Unlike married spouses, common-law spouses do not have any automatic rights to share property when they separate.
What can a cohabitation agreement include?
A cohabitation agreement can also help give common-law spouses other rights automatically given to married couples. Specifically, under Ontario’s Family Law Act:
“Two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
(d) any other matter in the settlement of their affairs.”
Why is it important to have a cohabitation agreement?
The law does not require common-law couples to sign cohabitation agreements but it is often a good idea for two reasons. First, it gives you and your spouse the opportunity to discuss what you each expect if the relationship ends. Second, it lets you create rights that the law does not otherwise provide for. For example, you may both agree to split property equally if you separate. Or, you may agree that neither of you has the obligation to financially support the other. The only terms you cannot put in a cohabitation agreement are child custody and access arrangements.
How to create a legal cohabitation agreement
To create a legally binding cohabitation agreement, you and your spouse must be completely open and honest about your financial situations and you must both sign the agreement in front of a witness. There cannot have been any pressure or threats involved in signing the agreement. Both parties to a cohabitation agreement should obtain independent legal advice and be separately represented. If you and your common-law spouse decide to get married, a cohabitation agreement is not cancelled. After you are married, your cohabitation agreement automatically becomes a legal marriage contract.
Although it is possible to write your own cohabitation agreement, it is best to contact a lawyer to make sure that your agreement properly protects your interests and is legally binding. The agreement will also be stronger if you and your spouse each talk to different lawyers before signing the agreement. This will prevent one spouse from later saying that they did not understand what they were agreeing to in the cohabitation agreement.
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