Cohabitation Agreement

What is a Cohabitation Agreement?

A Cohabitation Agreement is a contract that spouses enter into when they live together or plan on living together. The document is similar to a marriage contract, but it's meant for non-married spouses who wish to deal with their affairs in the event of a breakdown in the relationship. Upon marriage, this agreement turns into a marriage contract.

Is it mandatory to have a Cohabitation Agreement?

No. Having a cohabitation agreement is not necessary, but it's a useful agreement that allows the spouses to agree on important matters in the event of a breakdown in the relationship. A written agreement allows the spouses to enforce its terms in the event of non-compliance with what they agreed on.

What is the difference between a Cohabitation Agreement and a Separation Agreement?

A Cohabitation Agreement is used when spouses are entering into or are in a relationship. A Separation Agreement is used when the spouses haven't entered into a Cohabitation Agreement when they entered into a relationship, but want to deal with their affairs upon a breakdown in the relationship. Other than for child custody and parental responsibilities, a separation agreement will usually not be necessary if the spouses have signed a Cohabitation Agreement.

What should a Cohabitation Agreement contain?

The agreement covers the following:

• Property division: this refers to assets purchased by the spouses and how those assets will be divided upon breakdown of the relationship;
• Support obligations: this refers to payment obligations;
• Children's education: the spouses will have the right to choose who makes decisions for the child concerning education;
• Debts: spouses are at liberty to decide how debts will be paid;
• and more.

The right to property division depends on the law of the Province or Territory. The spouses may still agree on property division even if the law doesn't grant that right to non-married couples. In other words, if the spouses don't own the property jointly, they may still agree to an equal sharing of that property.

What is not allowed in a Cohabitation Agreement?

Depending on the Province or Territory, Cohabitation Agreements generally don't address parental responsibilities and child custody. That is reserved for Separation Agreements. It is illegal in the following Provinces/ Territories to have a clause on child custody and parental responsibilities:

• Ontario
• Alberta
• British columbia
• Manitoba
• New Brunswick
• Newfoundland and Labrador
• Prince Edward Island
• Nunavut
• Northwest Territories

Any attempt to include such clause will be invalid. This means that the clause can't be enforced by the spouses.

Who can enter into a Cohabitation Agreement?

Only spouses in a relationship that aren't married may enter into a cohabitation agreement. It's important to note that the signatories must be of the age of majority and not under a disability. The ages of majority are as follows:

• Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, Saskatchewan: 18 years old.
• British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Yukon: 19 years old.

What is the duration of a Cohabitation Agreement?

A cohabitation agreement typically lasts indefinitely to allow the spouses to enforce their rights and obligations as they relate to the agreement. In the event changes need to be made, the spouses can amend the contract accordingly. The agreement also converts into a marriage contract, which means it will last as long as the spouses don't terminate it.

What is necessary for a Cohabitation Agreement to be valid?

The cohabitation agreement is only enforceable if the following requirements are met:

• each spouse signed the contract before a witness (a witness can be anyone who sees the spouse sign the contract);
• the agreement is reasonable (e.g. spousal support can't be significantly reduced from the legal requirement and it can't favour one spouse significantly more than the other);
• the agreement must be willingly signed, and there can't be coercion (one spouse isn't forcing the other to sign);
• there must be financial disclosure by the spouses, including significant assets (each spouse must disclose their bank accounts and other property); and
• each spouse must understand the agreement.

What has to be done after a Cohabitation Agreement is ready?

Once the cohabitation agreement is ready, it must be signed, and the spouses must start implementing its terms. The spouses will need to work together to disclose their assets and liabilities to each other and decide how they would like to outline their financial support and obligations towards each other and the children, if any. Assets (property) and liabilities (debts) is a list containing sources of income, employment benefits such as a dental plan, bank accounts, land, vehicles, and more.

Signed copies of the document should be kept in a safe and secure location such as a safe, bank safety deposit box, or with a lawyer. The spouses should also scan and upload the signed document to a personal computer.

If circumstances change, such as a change in the financial position of one of the spouses, they can sign an amendment to the Agreement to make such changes.

Is it necessary to have witnesses to a Cohabitation Agreement?

Yes. A cohabitation agreement requires witnesses in order to be valid. Each signing spouse should have an independent witness to their signature. In other words, there should be two witnesses. The witnesses must be of majority age.

If the document is not witnessed, it can be found invalid.

Which laws are applicable to a Cohabitation Agreement?

Cohabitation Agreements are a type of domestic contract which is governed by the law of each Province and Territory. The pieces of provincial and territorial family legislation are the following:

• Ontario: Family Law Act, R.S.O. 1990, c. F.3
• Alberta: Family Law Act, SA 2003, c F-4.5
• Saskatchewan: The Family Property Act, SS 1997, c F-6.3
• Manitoba: The Family Law Act, CCSM c F20
• British Columbia: Family Law Act, SBC 2011, c 25
• Prince Edward Island: Family Law Act, RSPEI 1988, c F-2.1
• New Brunswick: Family Services Act, SNB 1980, c F-2.2 and the Marital Property Act, SNB 1980, c M-1.1
• Nova Scotia: Parenting and Support Act, RSNS 1989, c 160 and the Matrimonial Property Act, RSNS 1989, c 275
• Newfoundland and Labrador: Family Law Act, RSNL 1990, c F-2
• Yukon: Family Property and Support Act, RSY 2002, c 83
• Northwest Territories: Family Law Act, SNWT 1997, c 18
• Nunavut: Family Law Act, CSNu, c F-30

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