Family Law

Disclaimer: This article on cohabitation agreements is intended for the purpose of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

In recent years, there’s been a noticeable trend away from traditional marriage, with more couples choosing to live together instead. Whether driven by shifting societal norms, financial considerations, or personal preferences, cohabitation has become increasingly commonplace. However, this shift highlights the importance of protecting individual rights and interests, especially without the legal protections that marriage provides.

In response to this need, many more couples are choosing to enter into cohabitation agreements to navigate their shared living arrangements. These agreements offer clarity and protection, ensuring that both partners’ rights and responsibilities are clearly defined and upheld.

In this article, we’ll delve into the commonly asked questions about cohabitation agreements in Ontario, providing clarity and insight for those embarking on this journey.

1. What is a Cohabitation Agreement?

A cohabitation agreement is a legally binding agreement between the parties. The parties are two individuals who are living together in a romantic relationship but are not married. An agreement between married couples is referred to as a marriage contract. This agreement outlines various aspects of their cohabitation, including property division, financial responsibilities, and support obligations. It serves as a proactive measure to clarify each party’s rights and obligations in the event of a relationship breakdown or separation.

2. What Should I include in a Cohabitation Agreement?

Cohabitation agreements can cover a wide range of topics, depending on the needs and circumstances of the parties involved. That is why we warn against using templates – your agreement should be as unique as your relationship itself. However, your cohabitation agreement may include provisions relating to:

• Division of property: Specifies how assets and debts acquired during the relationship will be divided in the event of a breakup.
• Financial support: Addresses issues related to spousal support or financial assistance in case of separation.
• Property ownership: Clarifies ownership rights and responsibilities regarding jointly owned or shared assets.
• Rights and responsibilities during the relationship: Defines each party’s obligations regarding household expenses, financial contributions, and other matters.
• Dispute resolution: Establishes procedures for resolving disputes that may arise during the cohabitation period or upon separation.

A cohabitation agreement does not include provisions related to child custody or child support.  

3. Who Should Consider a Cohabitation Agreement?

Cohabitation agreements are recommended for any couple who intends to live together in a committed relationship without getting married. Whether you’re purchasing property together, sharing financial resources, or simply want to protect your individual interests, a cohabitation agreement can provide peace of mind and clarity for both parties. It’s especially important for individuals with significant assets or children from previous relationships to safeguard their interests through a formalized agreement.

Unlike married spouses, unmarried partners are not covered by the property division provisions of the Family Law Act in Ontario. This means that if unmarried couples separate, they don’t automatically have a legal right to divide property acquired during the relationship. Instead, property rights and any agreements between partners determine how assets are divided. Without clear documentation, property disputes can become complicated. That’s why it’s important for unmarried couples to consider creating a cohabitation agreement. This agreement helps outline property division and other important issues, ensuring fairness and clarity for both parties.

4. Are Cohabitation Agreements Legally Binding in Ontario?

Yes, cohabitation agreements are legally binding in Ontario, provided they meet certain criteria outlined in the province’s Family Law Act. To be enforceable, the agreement must be in writing, signed by both parties, and witnessed. It should also be entered into voluntarily, without coercion or duress. Additionally, each party should fully disclose their financial information and seek independent legal advice before signing the agreement.

5. Can a Cohabitation Agreement Be Challenged in Court?

While cohabitation agreements are generally enforceable in Ontario, they may be subject to challenge under certain circumstances. If one party alleges that the agreement was signed under duress, coercion, or without full disclosure of assets, a court may invalidate all or part of the agreement. Similarly, if the terms of the agreement are found to be unconscionable or unfair at the time of signing, a court may refuse to enforce those provisions.

This is why it is advisable to seek legal advice before you sign a cohabitation agreement. This way, you can protect your interests by ensuring you and your common-law spouse have a clear plan if the relationship ends. It is certainly in your best interests to avoid a complex court battle.  

6. What Happens If We Decide to Get Married?

If a couple who is in a common law relationship decides to get married, the agreement may be converted into a marriage contract or prenuptial agreement. Alternatively, they may choose to draft a new agreement that reflects their changed marital status and intentions. It’s important to review and update any existing agreements to ensure they remain valid and enforceable in light of changing circumstances.

7. How Do I Get Started with a Cohabitation Agreement?

Creating a cohabitation agreement involves several steps, starting with open communication and mutual understanding between you and your common law partner.

It’s best if each party receives independent legal advice from a qualified lawyer, although it is not required. The lawyer can assist in drafting the agreement, ensuring that it complies with Ontario’s legal requirements and adequately protects the interests of both parties. Once the agreement is finalized, it should be signed, witnessed, and kept in a safe place for future reference.

If you’re considering cohabitation or already living with your partner, Beeksma Law is here to assist you in preparing a cohabitation agreement tailored to your specific needs and circumstances. With our expertise and dedication to client satisfaction, you can trust us to guide you through the process with professionalism and care. Get in touch with us today to ensure that your rights and interests are protected as you embark on this new chapter of your relationship.