An increasing number of people choose to live with a partner without entering into a formal marriage contract. For these couples, cohabitation agreements can serve the same legal and financial function as marital agreements do for married people. With a cohabitation agreement, a couple can decide, among other things, how they will manage their joint finances; and if the relationship ends, how they will divide their property and whether one of them will receive ongoing financial support.
An Ottawa cohabitation agreements lawyer can discuss your situation with you and craft a legally compliant contract that meets your needs. Alternatively, a seasoned legal professional at our firm could review an agreement drafted by another firm to ensure you understand its implications and what it could mean for your financial life going forward.
Some provinces have statutes that define when cohabitating partners gain the same rights as married partners, commonly referred to as common-law marriage. Ontario law does not define common-law marriage in statute, but courts in the province have granted limited marital rights to cohabitating partners after three years. A couple also gains common-law marital rights when they have a child and are in a relationship of “some permanence.”
Other factors that could determine whether the law recognizes you and your partner as common-law spouses include:
An experienced cohabitation agreements lawyer in Ottawa can advise you on how these principles might affect your legal status.
People in a common-law marriage have the right to spousal support after the relationship ends. If the couple shares children, they each have a right to parenting time and an obligation to pay child support. However, common-law marriage does not bestow property rights—each partner is entitled to leave the relationship with only the property they brought to it or with the property that has their name on the deed or title. When both parties have contributed to the purchase or maintenance of an asset, principles of equity guide the division. Note that if one common-law spouse dies, the other has no legal right to inherit.
A cohabitation agreement allows you and your partner to decide how you will manage your financial life together and how you will disentangle it if the relationship ends. Crucially, a cohabitation agreement could grant one partner the right to the marital home. A cohabitation contract could also establish inheritance rights between the two of you.
A skilled Ottawa family law practitioner such as Paul Riley could tailor a cohabitation agreement to meet your specific needs and preferences. If you are each self-supporting and prefer to keep your financial lives separate, you might waive the right to ongoing support. If you have a more traditional family with one partner devoting considerable time to child rearing and managing the home, you might decide ongoing support after the relationship ends is fair.
If a couple with a cohabitation agreement marries, the agreement remains in effect and enforceable, with the court then treating it as a marital agreement.
The principles applying to domestic contracts in Ontario also apply to a cohabitation agreement—it must be in writing and signed by both parties in front of witnesses.
A court will uphold a cohabitation agreement if both parties entered into it willingly and fully informed. You must fully disclose your financial condition, including assets and debts, to your partner. Incomplete or inaccurate disclosure could invalidate an agreement. You must understand your rights without a contract and the rights you lose or gain by entering into a cohabitation contract. Each party should have an independent legal representative review the document and explain its terms and implications. A court will not enforce an agreement that is unconscionable, meaning so one-sided that it shocks the conscience.
If a partner challenges a cohabitation agreement and an Ottawa court agrees their objection is valid, the court could set aside the contract in its entirety. Alternatively, the judge may try to preserve the agreement but invalidate or refuse to enforce a specific clause. A dedicated Ottawa lawyer at The Riley Divorce & Family Law Firm can represent a cohabitant in a fight to set aside or enforce a cohabitation agreement.
While couples often have valid reasons for choosing not to marry, each partner should understand the law does not view a common-law spouse exactly as it views a married spouse. It makes good sense for unmarried couples to elucidate their financial plans and expectations and formalize them in writing.
An Ottawa cohabitation agreements lawyer can draft a domestic contract that addresses your unique preferences and needs. A capable legal professional from our firm is available around the clock to discuss your situation. Call now.
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