In New Brunswick, cohabitation agreements are an important legal tool for unmarried couples who wish to establish certainty and clarity regarding their financial and property rights. Unlike married spouses, common-law partners in New Brunswick do not automatically benefit from property division rights under provincial legislation. However, the province recognizes domestic contracts, including cohabitation agreements, as binding legal instruments that can be used to define the terms of the relationship and what happens upon separation or death.

This article provides a comprehensive overview of cohabitation agreements in New Brunswick, including the governing legislation, enforceability requirements, and unique provincial considerations that affect common-law couples.

Are Cohabitation Agreements Permitted in New Brunswick?

Yes. Cohabitation agreements are expressly permitted under New Brunswick’s Marital Property Act, SNB 1980, c M-1.1. While the Act primarily governs married spouses, it also allows unmarried couples who live together in a marriage-like relationship to enter into legally binding domestic contracts to deal with property and support issues.

Section 35(1) of the Marital Property Act states:

“Two persons who are cohabiting and are not married to one another may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or death, including

(a) ownership in or division of property,

(b) support obligations, and

(c) any other matter in the settlement of their affairs.”

Who Qualifies as a Common-Law Partner in New Brunswick?

New Brunswick statutes use several terms, including common-law partner, domestic partner, and spouse, depending on the context. For family property purposes, common-law partners do not have automatic rights to property division, unlike married spouses.

However, under other provincial legislation (e.g., pension division, spousal support, estate claims), the term “spouse” or “common-law partner” may include individuals who:

• Have cohabited in a conjugal relationship for at least 3 years, or
• Have cohabited in a relationship of some permanence and have a child together

The relevant definition depends on the statutory context, but regardless, a cohabitation agreement can be signed at any time, including:

• Before cohabitation begins
• During the relationship
• After becoming common-law for 3 years

What Can a Cohabitation Agreement Cover in New Brunswick?

A cohabitation agreement in New Brunswick can address a wide range of personal and financial matters, including:

• Ownership of property acquired before or during the relationship
• Division of assets upon separation
• Responsibility for debts and joint expenses
• Spousal support obligations or waivers
• Exclusive possession of the home or household contents
• Provisions for death or incapacity (though not a substitute for a will)
• Financial roles and contributions during cohabitation

However, cohabitation agreements cannot predetermine parenting arrangements. Decisions about parenting time and decision-making responsibility must be made based on the best interests of the child at the time of the dispute, under New Brunswick’s Family Law Act, SNB 2020, c 23. Section 35(2) of the Marital Property Act states:

“In an agreement under subsection (1), the persons may not agree to the right to parenting time or decision-making responsibility with respect to their children.”

Why Are Cohabitation Agreements Important in New Brunswick?

In New Brunswick, unmarried spouses do not have the same rights as married spouses when it comes to the division of family property upon separation. The Marital Property Act applies exclusively to married couples unless a domestic contract provides otherwise.

This creates a legal gap for many couples who have lived together for years and contributed jointly to their household. Without a cohabitation agreement, a separating common-law partner must resort to complex equitable claims, such as unjust enrichment, constructive trust and resulting trust.

These legal claims are difficult to prove, uncertain in outcome, and often expensive to litigate.

A properly drafted cohabitation agreement allows couples to avoid these uncertainties by defining their rights and obligations in advance.

What Makes a Cohabitation Agreement Enforceable in New Brunswick?

For a cohabitation agreement to be enforceable under New Brunswick law, it must meet several formal and substantive criteria:

1. Formal Requirements

Section 37 of the Marital Property Act states:

“A domestic contract and any agreement to amend or rescind a domestic contract shall be in writing, shall be signed by the parties to be bound and shall be witnessed.”

Therefore, to be enforceable, a cohabitation agreement must be:

• In writing
• Signed by both parties
• Signed in the presence of a witness, who must also sign

There is no statutory requirement for independent legal advice (ILA), but it is strongly recommended to protect against future challenges.

2. Voluntariness and Capacity

Like all contracts, the agreement must be entered into:

• Freely and voluntarily
• By parties who have legal capacity to contract
• Without duress, undue influence, or misrepresentation

A court may refuse to enforce the agreement if it finds that one party did not understand the nature of the agreement, was misled, or was pressured into signing.

3. Full and Frank Financial Disclosure

New Brunswick courts have adopted the national standard that disclosure is essential for fairness. A lack of financial disclosure, especially where the agreement significantly affects spousal support or property rights, can be grounds to set aside the agreement.

Disclosure should be:

• Comprehensive (listing all assets, debts, and income sources)
• In writing and preferably attached as a schedule to the agreement
• Exchanged before signing the agreement

4. Fairness and Unconscionability

New Brunswick courts respect parties’ freedom to contract, but an agreement may be set aside if:

• It is manifestly unfair or unconscionable
• It causes serious financial hardship to one party
• It offends public policy or the integrity of the legal system

Section 43 of the Marital Property Act provides:

“The Court may disregard any provision of a domestic contract if the Court is of the opinion that to apply the provision would be inequitable in all the circumstances of the case if

(a) the domestic contract was made before January 1, 1981, and was not made in contemplation of the commencement of this Part, or

(b) the spouse who challenges the provision entered into the domestic contract without receiving legal advice from a person independent of any legal adviser of the other spouse.”

Nonetheless, a properly drafted agreement, freely entered into, with legal advice and full disclosure, is highly likely to be upheld.

Can a Cohabitation Agreement Waive Spousal Support?

Yes. A cohabitation agreement may include a clause that limits or waives spousal support, provided:

• The waiver is clearly worded
• The parties understood the consequences of the waiver
• There was no pressure or coercion
• Financial disclosure was exchanged before signing

However, a court retains jurisdiction to order support if the waiver would cause undue hardship or is contrary to the interests of justice.

Spousal support waivers are more likely to be upheld if the agreement is well-drafted, both parties had independent legal advice, and the circumstances at the time of enforcement are not radically different than when the agreement was signed.

Can a Cohabitation Agreement Address Inheritance Rights?

Yes, but with limitations.

In New Brunswick, common-law partners do not have automatic inheritance rights under the Devolution of Estates Act if their partner dies without a will.

A cohabitation agreement can be used to:

• Waive the right to claim against the estate
• Provide for financial support upon death
• Create contractual obligations to maintain life insurance or name the partner as a beneficiary

However, these provisions should be accompanied by a proper will and estate planning documents to be fully effective.

Additionally, the surviving common-law partner may still apply for dependants’ relief under the Provision for Dependants Act, if left without adequate support—unless a valid waiver in a cohabitation agreement has been made.

Does the Agreement Remain Valid If the Couple Marries?

Yes, but this should be addressed explicitly in the agreement.

The New Brunswick Marital Property Act allows cohabitation agreements to remain in force after marriage, but a clear clause should be included:

“This agreement shall continue in full force and effect in the event the parties subsequently marry.”

If the agreement is silent, a court may have to determine whether the terms were intended to survive the marriage. In most cases, if the formalities have been observed and the intention is clear, the agreement will be treated as a marriage contract after the parties wed.

Unique Considerations in New Brunswick

1. No Automatic Property Division for Common-Law Partners

Unlike provinces like British Columbia, Alberta, or Manitoba, New Brunswick does not extend marital property division rules to common-law partners. This makes cohabitation agreements essential for protecting property rights.

2. Litigation Risk Without an Agreement

Absent a cohabitation agreement, common-law partners must rely on equitable remedies (e.g., unjust enrichment), which are fact-intensive, uncertain, and may result in no compensation despite years of contributions.

3. Formalism Is Minimal, but Still Important

New Brunswick has relatively light formal requirements (writing, signature, witness), but courts still expect evidence of understanding, voluntariness, and disclosure. Independent legal advice is not mandatory, but its absence increases the risk of challenge.

Best Practices When Drafting a Cohabitation Agreement in New Brunswick

• Put the agreement in writing, signed by both parties and a witness
• Exchange detailed financial disclosure before signing
• Attach financial statements as schedules to the agreement
• Include a clause stating the agreement survives marriage, if applicable
• Address spousal support rights clearly, either by waiving, capping, or defining them
• Ensure each party obtains independent legal advice (strongly recommended)
• Clarify ownership of property and whether appreciation is shared
• Coordinate with wills and estate planning documents to ensure consistency

Conclusion

In New Brunswick, cohabitation agreements are a critical legal tool for common-law couples. Unlike married spouses, common-law partners are not automatically entitled to share in family property on separation or death. Without an agreement, a partner may be left without recourse, even after decades of cohabitation.

New Brunswick’s Marital Property Act permits and enforces cohabitation agreements, provided they are in writing, signed, and witnessed. For maximum protection, these agreements should also include financial disclosure, legal advice, and clear, fair terms that reflect the couple’s intentions.

Whether you are starting a life together, moving in, or well into a long-term partnership, a properly drafted cohabitation agreement can give you peace of mind and legal certainty in an otherwise uncertain area of law.

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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.