In British Columbia, cohabitation agreements play a critical role for unmarried couples who live together or plan to do so. The province’s Family Law Act, SBC 2011, c 25, gives common-law partners significant rights and obligations, particularly with respect to property division and spousal support. Unlike some provinces where property rights do not apply to unmarried couples, British Columbia treats common-law relationships almost identically to marriages after a certain threshold is met.

This article explains how cohabitation agreements work in British Columbia, what makes them legally enforceable, and what unique legal issues couples in B.C. need to consider when entering into such an agreement.

Are Cohabitation Agreements Permitted in British Columbia?

Yes. Cohabitation agreements are explicitly permitted under section 92 of British Columbia’s Family Law Act. This section governs all types of “agreements respecting property division” and confirms that spouses, including unmarried spouses, can contract out of the default rules. Section 92 of the Family Law Act provides:

“Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more of the following:

(a) divide family property or family debt, or both, and do so equally or unequally;

(b) include as family property or family debt items of property or debt that would not otherwise be included;

(c) exclude as family property or family debt items of property or debt that would otherwise be included;

(d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt];

(e) jointly own a companion animal;

(f) share possession of a companion animal;

(g) give exclusive ownership or possession of a companion animal to one of the spouses.”

Under section 3(1)(b) of the Family Law Act, “spouse” includes unmarried couples who have lived together in a marriage-like relationship for at least two years, or who have a child together and live together in a marriage-like relationship. This section provides:

“A person is a spouse for the purposes of this Act if the person has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.”

Crucially, couples can enter into a cohabitation agreement before reaching the two-year threshold. The agreement will take effect once they meet the statutory definition of “spouse.”

What Can a Cohabitation Agreement Cover in B.C.?

A cohabitation agreement in British Columbia can address a broad range of issues, including:

• Division of family property and debt
• Exclusion of property from family property classification
• Ownership of property acquired before, during, or after cohabitation
• Spousal support obligations or waivers
• Debt responsibility
• Financial arrangements during the relationship
• What happens upon separation or death

However, as with all Canadian provinces, parenting time and parental responsibilities regarding children cannot be predetermined in a cohabitation agreement. These must always be determined according to the best interests of the child under Part 4 of the Family Law Act.

The Default Law Without a Cohabitation Agreement

If no cohabitation agreement is in place, the default regime under Part 5 of the Family Law Act applies to common-law couples once they qualify as “spouses.”

Key default rules include:

• Equal division of family property and family debt, regardless of whose name it is in
• Family property includes assets acquired during the relationship, and the growth in value of excluded property (such as pre-relationship assets)
• Spousal support may be payable depending on financial dependency, relationship length, and other factors

These consequences are significant, especially for individuals bringing substantial assets into a relationship, and are the primary reason many couples opt to sign a cohabitation agreement.

What Makes a Cohabitation Agreement Enforceable in British Columbia?

To be enforceable under B.C. law, a cohabitation agreement must meet certain legal standards. These have evolved both from statute and case law.

1. Writing, Signature, and Legal Advice (optional but recommended)

There is no strict statutory requirement in B.C. that a cohabitation agreement be signed with witnesses or in front of lawyers. However, for enforceability, courts look to whether the agreement:

• Was entered into voluntarily, without pressure or coercion
• Was signed by both parties,
• Was informed, meaning both parties understood their rights and what they were giving up
• Was not unconscionable or grossly unfair at the time it was made or enforced

While independent legal advice (ILA) is not legally required, it is strongly recommended. The absence of ILA is a red flag and may weigh against enforcement, especially where one party was vulnerable or disadvantaged.

2. Financial Disclosure

There is no explicit statutory requirement for financial disclosure, but courts have repeatedly stated that full and frank disclosure is essential. A failure to disclose significant assets or debts may be grounds to set aside the agreement later, especially if it results in unfairness.

3. Fairness and Freedom to Contract

British Columbia courts generally uphold domestic contracts—even those with unequal outcomes—provided they were freely negotiated and not oppressive.

Still, a court may set aside a cohabitation agreement if:

• There was a material misrepresentation or failure to disclose
• One party did not understand the nature or consequences of the agreement
• The agreement is significantly unfair, particularly when applied years later

A court may set aside a property agreement if it is “significantly unfair,” taking into account the length of time since it was made, changes in circumstances, and whether the agreement was negotiated fairly.

Can You Waive Spousal Support in a Cohabitation Agreement?

Yes, but it’s not guaranteed to be upheld. Courts retain discretion under section 164 of the Family Law Act to set aside a waiver of support if it is determined to be significantly unfair at the time of enforcement. For example, if one partner becomes disabled or financially dependent over time, a strict waiver may not stand.

Section 164(3) of the Family Law Act provides:

“On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse’s vulnerability, including the other party’s ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would under the common law cause all or part of a contract to be voidable.”

To improve enforceability:

• Both parties should receive independent legal advice
• Full financial disclosure should be exchanged
• The waiver should be clear, specific, and freely negotiated

Does a Cohabitation Agreement Convert to a Marriage Agreement?

In B.C., the Family Law Act does not include an automatic conversion clause. If parties marry after signing a cohabitation agreement, the agreement continues to apply unless:

• It contains a clause terminating the agreement upon marriage; or
• The parties enter into a new agreement (e.g., a marriage agreement) that replaces it

Including a clause that addresses what happens in the event of marriage is good practice.

Unique Considerations for British Columbia

British Columbia has several features that make cohabitation agreements particularly important:

• Property rights for common-law partners: Few provinces treat unmarried couples the same as married spouses for property division, and B.C. is one of them.
• Presumption of equal division: Unless opted out of, assets acquired during the relationship and increases in excluded property are divided equally.
• Significantly unfair test: B.C. courts apply a “significant unfairness” test to property agreements and spousal support waivers This is a lower bar than the unconscionability test used in most provinces, making proactive legal drafting important.
• Broad definition of family property: Includes pensions, business interests, real estate, and more. Proper classification and exclusion clauses are essential.

Practical Tips for Drafting a Cohabitation Agreement in B.C.

• Use precise language to classify excluded property
• Clarify whether growth or income from excluded assets is to be shared or not
• Specify how property is to be valued and divided upon separation
• Consider spousal support language carefully, including waivers and review clauses
• Exchange full financial disclosure in writing and reference it in the agreement
• Have each party obtain independent legal advice, documented in a Certificate of ILA

Conclusion

Cohabitation agreements are not only permitted in British Columbia, they are essential for any unmarried couple wishing to protect their property and clarify their legal rights. B.C.’s Family Law Act places common-law partners on nearly equal footing with married spouses when it comes to property and support obligations. Without a valid agreement in place, a person may face unexpected claims on separation.

To ensure enforceability, a cohabitation agreement in B.C. should be carefully drafted with legal advice, full disclosure, and terms that are not significantly unfair. Properly done, such an agreement can provide clarity, protection, and peace of mind for both partners.

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.