Cohabitation Agreement
What is a cohabitation agreement?
A cohabitation agreement is a written contract between two people who live together but are not married that defines the rights and obligations of each spouse as a result of their relationship. It helps to define financial and property arrangements should the relationship end. The purpose of the agreement is to protect each partner financially.
What do cohabitation agreements deal with?
- Property ownership or division
- Support Obligations
- Right to determine education and moral training of the children
- Any matter related to settlement of affairs
If a cohabiting spouse does not have a cohabitation agreement, he/she must rely on equitable remedies to a make a claim against a property. The spouse must show that their common law spouse party on title was unjustly enriched at their expense. The court will determine the appropriate remedy, which may be a monetary award or a constructive trust over the property. A cohabitation agreement does not leave the outcome up to a judge but rather it is predetermined since it is detailed in the agreement.
What can cohabitation agreements not deal with?
The agreement cannot deal with parenting time or decision-making for the children.
What section of FLA deals with cohabitation agreements?
Section 53 deals with cohabitation agreements.
How do rights vary between married and common law couples?
For common law couples, each person usually keeps the property they buy themselves, and there’s no automatic sharing of this property when they split up. If the property goes up in value, they do not automatically get to share that increase in value. If one person has paid towards the other’s property, they might need to negotiate or even go to court to get their share.
Common law partners can ask for financial support if they’ve been living together for three years or more, or if they have a child together. They can try to agree on how much one should pay the other for support, and if they can’t agree, they might need to ask a court to decide.
In contrast, married couples automatically have the right to share property and support each other financially if they divorce, which includes an equal right to stay in the home they shared together.
What happens if you decide to marry?
The cohabitation agreement becomes a marriage contract.
What happens if you live common-law and you die without a will and without a cohabitation agreement?
If someone in a common law relationship dies without a will, their property generally goes to their blood relatives, not their partner. The common law partner would need to go to court to claim any part of the property, proving they contributed to it financially. This process can be costly and time-consuming. It’s advisable for each partner in a common law relationship to have a will to specify how their property should be handled upon their death.