Legal Validity

Is A Cohabitation Agreement Legal?

In not too distant past, cohabitation agreements were not legal as living together without being married was considered against public policy. However, nowadays they are legal and in fact, several provinces have statutory provisions codifying their legality. In Ontario, section 53 of the Family Law Act is the statutory authority permitting them.

However, just because they are legal does not mean that every cohabitation agreement will be enforced by a court. They can be found invalid both on procedural grounds and substantive grounds – so the process of entering into your agreement is just as important as what is contained in it. Here are the main circumstances in which they will be found invalid:

1. Signatures and Witnesses. A cohabitation agreement must be in writing (no oral cohabitation agreements), and signed by both parties entering into the agreement. Each signature must be witnessed (and it is a good idea to use someone whom you will be able to locate many years into the future if needed).

2. Financial Disclosure. You and your partner must provide complete disclosure of your financial situation to each other prior to entering into a cohabitation agreement. The disclosure include both income and financial assets. Financial disclosure must be detailed – i.e., it’s not enough that your partner knows you own an RRSP, they must also know its value.

Courts take the view that you can’t intelligently enter into a cohabitation agreement without this information so if this isn’t done, your cohabitation agreement risks being invalidated by a judge. It is a good idea to include the financial disclosure as a schedule to your cohabitation agreement, or at least keep the papers showing financial disclosure was made.

3. Duress or Coercion. As is true for any type of contract, duress or coercion to enter into a contract can result in the contract being invalidated. So, don’t put pressure on your partner to sign a cohabitation agreement.

Often the pressure won’t come from your partner, but your partner’s family – perhaps their mother or father. That sort of duress or coercion can also result in a cohabitation agreement being invalidated. In other words, courts only enforce contracts that are entered into by both parties of their own free will.

4. Grossly Unfair. Judges can also invalidate a cohabitation agreement on the ground that it is grossly unfair. For instance, if after a long term relationship one partner is left destitute while the other is extremely wealthy, a court is likely to step in and address this perceived injustice by voiding the cohabitation agreement.

5. Illegal Clauses. Certain things are not permitted to be in cohabitation agreements. The most important of these things are clauses relating to child custody and child support. As well, this includes any illegal acts or “moral” type clauses such as penalties for adultery. If these sorts of clauses are included in a cohabitation agreement, they normally will be struck out without affecting the rest of the agreement.

In short, if you are fair about things when entering into a cohabitation agreement, and follow the required rules, the chances are very good that your cohabitation agreement will be valid.

You’re Invited to Call or E-Mail!

If you’re considering a cohabitation agreement — or have already made your decision — you’re invited to call or email us. We’ll explain for free how you can protect your assets and plan your estate. You can call us toll-free at (800) 407-2570 or email us using our contact form here. We can help you anywhere in Ontario, including Ottawa, Toronto, Mississauga, Brampton, and Hamilton.

Comments

  1. If someone has a will leaving their house to their child, but a cohab agreement with their partner of 6 years, wherein they leave the house to their partner, which comes into effect? Does one supercede the other? Thank you

  2. @Kathleen, I wish I could give you a simple answer, but there is not one. It is going to depend on the precise wording of the cohabitation agreement and the will, as well as the circumstances surrounding their being entered into. It is situation that requires a detailed review by a lawyer.

  3. Do you have to “file” the cohabitation agreement somewhere in Ontario after it is created and signed? Or after its signed do you just keep it in a safe until the day its needed?

  4. @JJ – there is no filing the cohabitation agreement. Yes, you just keep it in a safe place until needed.

  5. Began living together since July1 2008. Bought a house in August 2008 but my name is not on the title. I recall something to the effect of my credit was not favorable at the time, but he got the mortgage in his name (?maybe with my income?)… I earn more than twice as much as partner and have 2 dependents still at home. He has no dependents. I pay almost all the bills, maintenance and repairs to the home, groceries etc. Not looking to break up or leave but I now understand I have almost no rights in this situation. What is my best next step?

  6. @Michelle – For common law in Ontario, each party keeps what is in his or her name if the relationship ends. So, if the house is in his name, it remains his. If it is just the house at issue, then that can still be transferred into joint names. Otherwise, if more assets are at stake, a cohabitation agreement would make sense.

  7. Cathie Blake says:

    I have a cohab agreement with my partner, in the agreement it says that it will be binding in the event of marriage. I have heard that the Ontario law is that once a couple gets married the whole document regardless of what is says is nil and void. Is that a fact?

    • @Cathie – All cohabitation agreements remain in effect when a couple marries, unless the agreement specifically states otherwise.

  8. Does the cohabitation agreement need to be sworn similiar to an affidavit? Or are the only signatures that are required are those of the parties involved and the two witnesses?

    • cohablawyer cohablawyer says:

      @Todd – No, a cohabitation agreement does not get sworn (or for that matter, notarized). Simply signed by both parties and signed by a separate witness for each party.

  9. Can a co-habitation agreement be between a man and a woman who are living together but are not actually together? Would it work for that? I mean they are friends, not in a relationship, just sharing the home together as room mates.

    • cohablawyer cohablawyer says:

      @Cookie – If they truly were just roommates, then there would be no need for a cohabitation agreement, as neither of them would have family law rights or obligations.

      Here are the legal factors that courts take into consideration when deciding whether a couple is living common law:

      1. Shelter – did you and your partner live together;
      2. Sexual and Personal Behaviour;
      3. Services – did you and your partner help each other the way a traditional family would;
      4. Social – did you and your partner portray yourselves as a couple;
      5. Societal – how did the community view your relationship;
      6. Economic Support – was one partner support the other financially, or were your finances combined?; and
      7. Children – did you interact parentally with each other’s children?

  10. Is a cohabitation agreement valid if its not signed? Im currently going through a divorce, my ex is stating that there was a cohabitation agreement between us and hes provided his lawyer with a “copy” of a supposed cohabitation agreement but the agreement is not signed by any of us or dated, if he provides that to court would that document be valid infront of a judge?

    • cohablawyer cohablawyer says:

      @Anna – A cohabitation agreement must be signed and witnessed for it to be valid.

      I don’t know enough about the specifics of your case to comment on it. But it could be that your ex is claiming that the agreement existed and was destroyed, or something like that.

  11. Trish Picherack says:

    When a couple has a cohabitation agreement and one of then dies is the cohabitation agreement superseded by the will of the deceased?

    • cohablawyer cohablawyer says:

      @Trish – A cohabitation agreement comes into effect when a relationship ends. A relationship can end either via separation or one party passing away.

      So, you can put into your cohabitation agreement what you want to happen with your estate. If you do that, then normally that will override anything in a will.

      So, for instance, a cohabitation agreement may state that upon death, each party will leave their interest in the matrimonial home to the other. If one partner passes away without leaving their interest in the matrimonial home to the other in their will, then the surviving partner can choose to enforce what was set out in the cohabitation agreement.

  12. MY name is on the deed of the house. Can he sell the house without my permission?

    • cohablawyer cohablawyer says:

      @Marie – No. The deed is public notice that you own an interest in the house, and the lawyer on the real estate transaction would see that.

  13. My son and his girlfriend are moving in together, he bought a house prior to this relationship and we want to protect him. If they sign a co-habitation agreement, can we (his parents)
    witness for my son, or does it have to be someone unrelated?

    • cohablawyer cohablawyer says:

      @Sue – Yes, in theory that’s fine, but I would recommend that your son’s girlfriend use a different witness, otherwise there could be allegations in the future that you pressured her to sign.

  14. Christina says:

    Can a cohabitation agreement be made after having lived together for 3-4 months? Can it be made anytime prior to the 6 month mark?

    • cohablawyer cohablawyer says:

      @Christina – Yes. You can make a cohabitation agreement at any time, even if you are living together, and even if you have lived together for many years.

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Cohabitation Agreement Ontario