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Creating a cohabitation agreement as a common law partner

These days, many Ontario couples forego the marriage ceremony and opt, instead, to cohabit. If you are considering this option as a common law partner, you may want to strongly consider having something in place to safeguard your interests while living together, just in case you should ever break up.

A cohabitation agreement formally spells out the particulars of your financial relationship. These agreements cover such things as spousal support and the division of property and assets if your relationship should end.

Dividing property

The home in which you are living as a common law couple is not considered a matrimonial home. A home becomes a matrimonial home when people marry legally. There is no obligation when you're living together as common law partners to share and divide property should you ultimately separate. However, a cohabitation agreement could stipulate the sharing of such property should you choose to address it in the agreement.

Spousal support and child custody

A cohabitation agreement can also indicate if the partner who earns more should pay support to the one who earns less in the event of a separation. So, if you have a high net worth when you choose to cohabitate, it could be in your best interests to include a provision that specifically stipulates how much spousal support, if any, your partner would receive should your relationship ever end.

If you decide to marry at some point, a cohabitation agreement morphs into a marriage contract; however, it can't stipulate child custody situations in the event of a separation or divorce.

What is required to validate a cohabitation agreement?

There are certain formal requirements in a cohabitation agreement. Rules state that the agreement:

  • Needs to be in writing
  • Must be dated
  • Has to include the signatures of those to whom the agreement pertains
  • Must include the signature of a witness, so partners must sign the document in front of another person

Not following any of these rules could render your agreement null and void. Revisions can be made to your cohabitation agreement as life changes.

Is my agreement fair?

If you or your partner ever reneges on what's in your agreement, a court will ascertain how fair the agreement was in the first place. There are some reasons a court might consider a cohabitation agreement to be unfair:

  • If the agreement was made using any kind of force or pressure
  • If the agreement contains false or misleading information, resulting in one partner's signature
  • If the agreement favours one partner more than the other

Getting legal advice

Gaining an understanding of how a cohabitation agreement affects your rights as a common law partner might be a prudent step to take. An experienced lawyer can offer this legal advice before you sign anything to help ensure that all of the necessary details are included in your agreement and that your future best interests are protected.

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