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What is a cohabitation agreement?

A cohabitation agreement is a written document that you and your common-law partner can make before or while you are living together. It is a type of domestic contract that says how you will deal with issues while you are together or at the end of your relationship.

For example, your cohabitation agreement can say things like how you and your partner will divide your property and debts if you separate.

If you sign a cohabitation agreement and then later marry your partner, the law says that your agreement automatically becomes a marriage contract.

A cohabitation agreement or a marriage contract cannot say who gets custody or access to any children if you separate. This is because decisions about children must be made at the time you separate or divorce, based on what is in the best interests of the child.

When married people separate, they each have an equal right to live in their matrimonial home. A marriage contract cannot change their equal right to live in the home. So if you have a cohabitation agreement about who can live in a home and you later marry, this part of your agreement might not apply.

This information might not apply if you made your cohabitation agreement outside Ontario. A family law lawyer can explain how the law applies to agreements made outside Ontario.

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1. Discuss what legal issues you want to put in your agreement

You and your partner need to talk about the issues you want to put into your agreement.

You might not feel comfortable asking your partner to sign a cohabitation agreement. But it is important to sign an agreement if you want to change what the law assumes will happen during your relationship or after it ends.

For example, you might want your partner to sign an agreement saying that they won’t make a claim to your family business if you separate.

The most common issues covered in these agreements are property division and spousal support.

Sometimes cohabitation agreements are signed because one partner:
• is bringing a lot of assets into the relationship that they want to protect if the relationship ends
• has a special type of property that they want to protect, such as a family cottage or family business
• has children from an earlier relationship or other commitments that they want to take care of

Common-law partners don’t usually share property when they separate. You might want to change this by agreeing to share property in a cohabitation agreement. For example, you might want to share property as if you were married even if you don’t actually want to get married.

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2. Talk to a lawyer

You don’t need a lawyer to make a cohabitation agreement. But it’s a very good idea for each of you to get your own legal advice before signing one.

You can talk to a lawyer who can help you understand:

  • the claims you can make if you separate or divorce
  • your rights and responsibilities toward your children and your partner
  • the rules your agreement has to follow
  • how your rights change once you sign the agreement

You and your partner should not go to the same lawyer. It is important for each of you to get your own legal advice from different lawyers. This is sometimes called independent legal advice (ILA). The advice is independent because each lawyer is working for only one of you.

It is important to get ILA because:

  • it helps you understand what you’re agreeing to
  • your agreement is less likely to be challenged in court later
  • a court is more likely to order you and your partner to do what you agreed to in your agreement

If you decide not to get legal advice, you may not be able to argue later that you didn’t understand your legal rights when you signed the agreement.

If you can’t afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case, such as reviewing your agreement.

If you can't afford to hire a lawyer at all, you might be able to find legal help in other places.

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3. Make your agreement

A cohabitation agreement has to follow certain rules to be binding and enforceable. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says.

For example, the law says that you and your partner must honestly tell each other about all your finances before making an agreement about spousal support or dividing property. This is sometimes called financial disclosure.

Later, if one of you doesn’t want to follow the agreement, the court checks to see if the process was fair at the time you discussed and signed your agreement. The court looks at what happened when you first signed the agreement, not at the time that you or your partner challenge the agreement.

The court might decide that the process wasn’t fair if:
• one of you, or someone else, forced or pressured the other partner to sign the agreement
• one of you gave false information to the other partner to get them to sign the agreement
• the agreement is very unfair to one partner

If you get independent legal advice (ILA), it can help to show that the process was fair if the agreement is challenged in the future.

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4. Sign your agreement

There are rules about how you make an agreement. These rules are called formal requirements. These rules say your agreement must:

  • be in writing
  • have a date
  • be signed by both people who are making the agreement
  • be witnessed, which means you and your partner have to sign the agreement in front of another person
  • be signed by the witness

If you don’t follow these rules, and you don’t agree later about your agreement, the court doesn’t have to order you or your partner to follow it.

There is no rule about what exactly you have to agree on in your contract. But you should be as clear and detailed as you can so that the agreement shows exactly what you and your partner agreed to.

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5. Change or cancel your agreement if needed

It is a good idea to review your agreement as your situation changes to see if you still want it to apply.

Changing an agreement is sometimes also called varying or amending an agreement. Cancelling an agreement is sometimes also called rescinding an agreement.

How to change or cancel your agreement

You can change or cancel your agreement at any time if you and your partner agree. To do this, you have to make a new agreement. This new domestic contract is sometimes called an "addendum agreement" or “amending agreement”. In this agreement, you usually say what parts of the first agreement you agree to change or cancel.

For example, say you sign a cohabitation agreement on May 1, 2012. Your new agreement might be called "Amending Agreement to the Cohabitation Agreement Executed on May 1, 2012". It should say which specific paragraphs are being changed and how they are being changed.

Your new agreement has to follow the same rules as your first agreement to be binding and enforceable. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says.

You also need to follow the same formal requirements that you followed when you signed your first agreement. This includes making the new agreement in writing and having each partner sign it in front of a witness. For more about these formal requirements, see Step 4, above.

Reasons to change or cancel your agreement

There are many reasons why you might want to change or cancel your agreement. One reason is if you plan to get married.

The law says that your cohabitation agreement automatically applies as a marriage contract if you marry your partner. So if you don’t want it to apply, you need to make a new agreement.

Another reason you might want to change your agreement is if your financial situation changes. For example if:

  • one partner gets a large inheritance
  • you have a child together
  • one partner’s income increases or decreases a lot
  • one partner falls ill and cannot work
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August, 2016

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