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.

  15. What legal form is to be used for a cohabitational agreement?
    Also, if one side owns a home prior to cohabitation and the other side is proportionately contributing to the household expenses ( including mortgage, insurance etc) during cohabitation, would the other side have any claim to the home equity gained during cohabitation in the event of a breakup?

    Thanks,
    Joan

    • cohablawyer cohablawyer says:

      @Joan – It’s not just a form – a cohabitation agreement is a multi-page contract (10 to 20 pages normally) that is specifically prepared for you and your circumstances.

      As for contribution to household expenses, yes, without a cohabitation agreement, if one party contributes to household expenses during cohabitation, of a home that they do not own, that party may well have a claim to some of the equity in the home under the principles of unjust enrichment.

  16. Lee Gibson says:

    What happens if your ex forges your signature on a cohabitation agreement and you paid a forensic signature analysis to examine the document and they indeed indicate your signature was not signed by you?

    • cohablawyer cohablawyer says:

      @Lee – A cohabitation agreement must be signed by the party entering into the agreement, otherwise it is not valid.

      Another requirement is that the agreement is also signed by a witness, in part so that this sort of thing does not happen. If there is no witness, the agreement is not valid. If there is a witness, you will want to check what the witness has to say about your signature.

  17. Great article! – few questions:

    Original Oral cohab agreement was made a 10 few years ago; he wanted me to relocate to new place for his job opportunity, which meant I had to quit my job and move to a new place that didn’t recognize my job license, so also had to change careers; thus he said he’d support me during that interim. We moved I started new job, then we got pregnant, we have 3 kids. I’ve quit my career to raise our kids and to support him as he furthers his career and financially provides for us all. Since having kids we’ve made a new oral cohab agreement and we’d like to put it into writing…

    In event of separation, we have agreed to:
    1) equal division of all assets & debt.

    2) he has promised, in event of separation, to pay 50% of his net income to me and the children for 10 years, followed by 8 years at 18% of net income for additional 6 years, (total 216 months). Is there a law against using percentages rather than flat rate?
    *there’s a few options to reduce %: if I marry, or make my own income, or to impute minimum wage on me after all kids are in school;
    *he is commission income with no base salary, that’s why we’ve chosen us use %’s rather than flat, so we’re on same footing.

    3) I have agreed not to seek child support so long as he’s current on payments; and in the Cohab Agreement, I state that “I’ll pay for my share of children’s expenses through the support payments from him; we REALLY want to keep our family business out of courts; I don’t explicitly “waive right to child support”, because I don’t know if that is unlawful and I don’t want to make the contract voidable by “waiving” my right to child support, I don’t explicitly “waive right to child support” in the agreement.

    4) The support payments are essentially a combination of support-types: palimony, compensation for my own income loss, loss of career advancement, loss of years to contribute to my retirement, and support for children, is it proper to refer to it as palimony in the agreement or support?

    5) What is proper “consideration” for Cohab agreement? Is it “cohabtition “or “mutual promises”, or “quit job to provide homemaker services for future compensation” or something else consideration?

    6) Do we make a retroactive effective date, since we’ve relied on these oral promises for the many years, or use effective date of signing written version?

    7) Is this a Cohab or Non-marital agreement?

    Thanks so much, I find your articles fascinating and well written, so THANK YOU!

    • cohablawyer cohablawyer says:

      @delia – Please note that there is no such thing as an “oral” cohabitation agreement. The Family Law Act requires a cohabitation agreement to be in writing.

      1. That’s fine.

      2. Letting spousal support be a percent of the payor’s income is an approach that is alright to use.

      3. Regarding child support, a court generally will not enforce anything you put in a cohabitation agreement about it. Even if you do not explicitly waive child support in your agreement, you would still have the right to apply for it if your relationship ends, and that would be on top of any support payable under the agreement.

      That being said, you could set out a formula in your cohabitation agreement that takes into account child support. So, for instance, instead of spousal support being 50% of net income, it could be 50% of net income less child support.

      4. “Palimony” is an American term, and does not have any meaning under Ontario law. The term you are looking for is spousal support.

      5. The consideration in a cohabitation agreement is the mutual promises that the parties give each other.

      6. A cohabitation agreement is effective on the date that the last party has signed it. I do not see anything in your agreement that would need to be made retroactive.

      7. A cohabitation agreement is for couples who are not married. Yes, the issues you cover are precisely what is in a cohabitation agreement, and a good example of what one can contain.

  18. I purchased a property with my boyfriend but he did not spend a dime, we used all of my money for all downpayments, closing costs etc. I would like to make a cohabitation agreement that clearly states these facts.

    Does it need to be written by a lawyer or can we write one ourselves and have it legally bibding if we follow all necessary steps?

    Thanks very much

    Jenna

    • cohablawyer cohablawyer says:

      It’s normally best that both parties have their own lawyers. Without that, the agreement always risks being challenged in the future on the ground that one party did not understand the agreement, or did not understand how the agreement impacted their legal right, or that they were pressured into signing the agreement.

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Cohabitation Agreement Ontario