In Nova Scotia, cohabitation agreements are legally valid and enforceable under the common law, even though there is no statute specifically authorizing them. These agreements allow unmarried couples who live together, or plan to, to define their financial rights and responsibilities during the relationship and in the event of separation. This is particularly important in Nova Scotia, where common-law spouses do not automatically gain rights to property division, unlike married couples or those in registered domestic partnerships.

This article explains the legal basis for cohabitation agreements in Nova Scotia, what makes such agreements enforceable, and how they differ from the legal rights that arise through marriage or registration as domestic partners.

Is a Cohabitation Agreement Permitted in Nova Scotia?

Yes. Although there is no statutory framework specifically authorizing cohabitation agreements, they are recognized and enforceable under Nova Scotia’s common law contract principles. Courts in Nova Scotia have upheld domestic contracts between unmarried partners when they are:

• Entered into voluntarily,
• Supported by consideration (typically mutual promises),
• Clear in their terms, and
• Not contrary to public policy.

Common-Law Relationships vs. Registered Domestic Partnerships

Nova Scotia law makes an important distinction between two types of unmarried couples:

1. Common-law couples (unregistered)

• Have no automatic rights to property division under the Matrimonial Property Act.
• May claim spousal support under the Maintenance and Custody Act after two years of continuous cohabitation (or earlier if they have a child together).
• Cannot inherit on intestacy unless named in a will or qualifying for dependant’s relief.

2. Registered domestic partnerships

• Can be created by filing a Declaration of Domestic Partnership under the Vital Statistics Act, RSNS 1989, c 494.
• Once registered, partners are treated like married spouses for most legal purposes, including:
  • Property division under the Matrimonial Property Act
  • Spousal pensions and benefits
  • Inheritance on intestacy
  • Spousal support rights

Only registered domestic partnerships have rights to property division equivalent to marriage.

What Can a Cohabitation Agreement Cover in Nova Scotia?

A cohabitation agreement may address any financial or property-related aspect of the relationship, including:

• Ownership of property acquired before or during the relationship
• Division of assets upon separation
• Responsibility for debts and joint expenses
• Spousal support obligations, waivers, or terms
• Exclusive use of the family home upon separation
• Contributions to household assets and rights of reimbursement
• Provisions on death, including life insurance or support obligations (though these should be supported by a will or estate plan)

However, a cohabitation agreement cannot determine parenting arrangements, such as custody or parenting time. These decisions must be made based on the child’s best interests under the Parenting and Support Act, and cannot be contracted in advance.

What Makes a Cohabitation Agreement Enforceable in Nova Scotia?

Because there is no statute governing cohabitation agreements directly, enforceability is determined using general principles of contract law. The courts will uphold a cohabitation agreement where the following elements are present:

1. Writing, Signature and Witnessing

Although not a statutory requirement, the best practice is to put the agreement in writing, have it signed by both parties, and have it witnessed. This helps prove that the agreement was made and can avoid disputes over authenticity.

2. Voluntariness and Capacity

The parties must have the capacity to contract and must enter into the agreement freely and voluntarily, without:

• Duress
• Undue influence
• Misrepresentation
• Mental incapacity

An agreement signed under pressure or without understanding can be set aside by a court.

3. Full and Frank Financial Disclosure

While not a legal requirement, courts strongly favour agreements where both parties have disclosed their financial circumstances. Failure to disclose significant assets or debts increases the risk of the agreement being found unconscionable or unfair.

Disclosure should include:

• A list of all assets, liabilities, and income
• Attached schedules (if possible), signed and acknowledged by both parties

4. Independent Legal Advice (Strongly Recommended)

Although not required, independent legal advice (ILA) is critical to enforceability. If a party tries to challenge the agreement later, the presence of legal advice:

• Shows they understood their rights
• Shows the agreement was made voluntarily
• Reduces the risk of the agreement being set aside for unfairness

Ideally, the agreement should include a Certificate of Independent Legal Advice signed by each party’s lawyer.

5. Fairness and Good Faith

The court will consider whether the agreement is unconscionable, i.e., shockingly unfair, or whether one party would be left in serious hardship. Agreements that were reasonable when signed and freely negotiated will generally be upheld, even if they seem unequal in hindsight.

Can a Cohabitation Agreement Waive Spousal Support?

Yes. A cohabitation agreement can include:

• A full waiver of spousal support
• A fixed amount or duration of support
• A conditional waiver (e.g., waived unless children are born)

Courts in Nova Scotia will generally uphold such waivers unless:

• The agreement is fundamentally unfair
• There was no legal advice or disclosure
• Enforcing the waiver would cause undue hardship

The Maintenance and Custody Act permits a court to award support even if there’s an agreement, if circumstances make it necessary to do so for fairness, particularly where one party has become economically disadvantaged as a result of the relationship.

Can a Cohabitation Agreement Address Inheritance Rights?

To some extent, yes.

Common-law partners in Nova Scotia do not have rights to inherit if their partner dies intestate (without a will), unless they are registered domestic partners.

A cohabitation agreement can include:

• A waiver of the right to apply for dependants’ relief
• A contractual promise to leave certain assets to the partner
• An obligation to maintain a will or name the partner as a beneficiary of insurance or pensions

However, such provisions are not a substitute for proper estate planning. The safest way to protect a common-law partner is to:

• Create or update a will
• Ensure beneficiary designations are current
• Use a cohabitation agreement as a supplementary contract

What Happens if the Couple Marries?

Cohabitation agreements do not automatically continue after marriage in Nova Scotia unless the agreement says so. Parties should include a clause such as:

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

Unique Considerations in Nova Scotia

1. No Property Rights for Common-Law Partners

Unless registered as domestic partners or married, common-law partners in Nova Scotia have no automatic right to share in property on separation, regardless of how long they lived together or whether they raised children together. A cohabitation agreement is the only way to proactively define rights and avoid litigation.

2. Domestic Partnership Registration Option

Nova Scotia allows couples to register a domestic partnership under the Vital Statistics Act. Once registered, partners are treated like spouses under:

• The Matrimonial Property Act (property division)
• The Intestate Succession Act (inheritance)
• Other statutes governing pensions and benefits

If parties do not register, they must create their own rights by contract.

3. Litigation Without an Agreement Is Risky

Without a cohabitation agreement, partners must rely on equitable remedies such as constructive trust, resulting trust and unjust enrichment. These are difficult to prove, require costly litigation, and offer uncertain outcomes.

Best Practices for Drafting a Cohabitation Agreement in Nova Scotia

• Always put the agreement in writing and have it signed and witnessed
• Exchange written financial disclosure, ideally attached to the agreement
• Include a clause stating whether the agreement continues if the parties marry
• Address ownership and division of property, including appreciation or joint purchases
• Clearly state whether spousal support is waived, capped, or payable
• Coordinate the agreement with a will, life insurance, and beneficiary designations
• Ensure each party obtains independent legal advice, with signed certificates if possible
• Include a dispute resolution clause, such as mediation

Conclusion

In Nova Scotia, cohabitation agreements are recognized and enforceable under the common law. They are essential for unmarried couples who want to avoid uncertainty and protect their financial interests in the event of separation or death. While registered domestic partners receive many of the same rights as married couples, most common-law partners have no statutory property rights and must rely on private agreements to define their obligations.

To ensure enforceability, cohabitation agreements in Nova Scotia should be in writing, signed, witnessed, supported by full disclosure, and ideally reviewed by independent legal counsel. With careful planning, a cohabitation agreement can provide clarity, fairness, and peace of mind.

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.