Does a Cohabitation Agreement Become a Marriage Contract in Ontario?

You have been living together, you signed a cohabitation agreement, and now you are planning to get married. A natural question is whether that agreement simply disappears on the wedding day, or whether you have to start over.

Ontario's Family Law Act speaks to this directly. This article explains what the Act says, why marriage still changes your legal position in other ways, and what to check before the wedding.

What the Family Law Act says

A cohabitation agreement is a contract that two unmarried people make about their rights and obligations, including property and support. If the parties to a cohabitation agreement later marry each other, the agreement is deemed to be a marriage contract.

In plain words, the agreement does not end when you marry. The law treats it as a marriage contract from that point, so the terms you already agreed to can carry over rather than vanish.

It must still be a valid agreement

Carrying over only helps if the agreement was valid to begin with. A domestic contract, including a cohabitation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance also says both partners must sign a cohabitation agreement in front of a witness.

The rule that turns a cohabitation agreement into a marriage contract applies to an agreement made under the Act, and an agreement that is not in writing, signed and witnessed is unenforceable. How this applies to a verbal deal, an informal understanding or an unsigned draft depends on your situation, so it is worth confirming with a lawyer. If you are unsure whether your copy was properly signed and witnessed, ask a lawyer to look at it before the wedding.

Why marriage still changes your position

Marriage changes how the law treats you in several areas, and an agreement written for two unmarried people may not have been drafted with those changes in mind.

• Property division and the matrimonial home rules in the Family Law Act use the definition of spouse that covers married people, not unmarried partners.
• Common-law couples in Ontario are not covered by property division on separation: each partner keeps the property they bought, although a partner who contributed to property the other owns may have a right to part of it, and may have to go to court unless the owner agrees to pay the contribution back.
• If someone dies without a will, a common-law spouse does not inherit under the Succession Law Reform Act, because spouse there covers married spouses only.
• A married spouse may be entitled to the whole estate when there is no will and no issue, or a preferential share where there is issue. Separated married spouses are an exception to those entitlements.

Because your agreement will now be treated as a marriage contract, it is worth reading it again with marriage in mind. Terms that suited two unmarried people may not be what you want as spouses.

Limits that still apply

Being treated as a marriage contract does not make every term untouchable. A court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets or debts that existed when the contract was made. It may also do so if a party did not understand its nature or consequences.

Support terms and waivers can be reviewed too. A court may set aside a support provision or waiver and order support if it results in unconscionable circumstances, if the dependant qualifies for support out of public money, or if support under the contract is in default.

Terms about children also stay under the court's oversight. A court may disregard a provision on education, moral training, decision-making responsibility or parenting time if that is in the child's best interests, and may disregard an unreasonable child support provision.

What to do before the wedding

• Find your signed and witnessed copy of the cohabitation agreement.
• Re-read the property, support and debt terms and note anything that no longer fits your plans.
• Update your financial information, because non-disclosure of significant assets or debts is a ground for setting a contract aside.
• Ask a lawyer whether to amend the agreement or sign a new marriage contract.
• Ask a lawyer how to approach any update, including independent advice and exchanging financial information; Ontario's guidance suggests both for cohabitation agreements.
• Review your will, since marriage affects how the law treats a spouse on death.

Frequently asked questions