Written by Owen Thompson on November 9, 2018
A cohabitation agreement is an agreement between two parties who intend to live together but are not legally married. Even if a couple is planning to get married in the future, a cohabitation agreement can still be a good idea. These agreements are particularly important if one party owns the home and the other party does not, but both plan to reside in it. A cohabitation agreement can be tailored to your specific situation, and include clauses regarding home maintenance and contribution to household bills, as well as what would happen should the relationship break down. Division of assets and payment of debts upon a relationship breakdown can be carefully tailored to what each party brought into the relationship.
A cohabitation agreement can be drafted by a lawyer to cover off any and all of the concerns a couple might have regarding their relationship and assets. Both parties to an agreement should have a separate lawyer review the document to make sure that their interests are protected. For instance, one partner can hire the lawyer to draft the agreement and represent them, and the other partner can find a different lawyer to review the agreement with them after it is written and give them advice about any changes that should be made to protect that party’s interests. While independent legal advice can be waived by either party to the agreement, it is strongly recommended as it will strengthen the agreement in the event it needs to be used in the future. If both parties did not have legal advice at the time the agreement was signed, it could later be argued that one party signed under duress or without understanding their rights under the agreement. The success of that argument is not guaranteed, but independent legal advice could help to avoid it in the first place.
If you sign a cohabitation agreement and later get married, the agreement automatically becomes a marriage contract under Ontario law. However, a cohabitation agreement CANNOT determine custody and access to any children of the relationship if you separate, whether you are legally married to your partner or not. The Family Law Act determines custody and access based on the best interests of the child.
Do you need a cohabitation agreement or have questions about a family law matter? Contact us!