What Is a Cohabitation Agreement and Is It Enforceable in BC?

Couples who live together without marrying often assume they have no legal obligations to each other, or that they have the same ones as married people. Neither is quite right in British Columbia, and a written agreement is one way to set your own terms.

This article explains what people usually mean by a cohabitation agreement, how the Family Law Act deals with it, and what makes it more or less likely to hold up.

This article covers the law of British Columbia.

What a cohabitation agreement is

A cohabitation agreement is a written agreement between partners who live together in a marriage-like relationship, setting out how property, debt and sometimes support will be handled if they separate. The Act itself does not use that label. It speaks of agreements between spouses, and the same rules apply to spouses whether married or not.

When an unmarried partner is a spouse

A person is a spouse if married to another person, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. Except in Parts 5 and 6, a person is also a spouse if they have a child with that person. The relationship begins on the earlier of the date the two began living together in a marriage-like relationship or the date of their marriage.

For property division under Part 5, unmarried partners become spouses only after two continuous years of cohabitation. Whether an agreement signed before that point is treated the same way is a detail worth confirming with a lawyer.

What the agreement can change

Without an agreement, spouses are presumptively entitled to family property and responsible for family debt, with each having a right on separation to an undivided half interest in family property. That is expressly subject to an agreement or order that provides otherwise. A property agreement can do the following:

• Divide family property or debt equally or unequally.
• Include items that would not otherwise be included, such as an inheritance or a pre-marriage asset like a business interest.
• Exclude items that would otherwise be included, such as a business or a home.
• Value property or debt differently from the default valuation.
• Say who owns or has possession of a companion animal.

An agreement can also deal with spousal support, including a release from liability for it. That is not the end of the matter. A witnessed spousal support agreement can still be set aside or replaced by the court on limited grounds, including if it is significantly unfair, and a condition that a spouse abstain from sexual relations after separation is not binding.

Child support and parenting terms are different. They are binding only if made after separation, or when the parties are about to separate and it is meant to take effect on separation.

Will a court enforce it?

The set-aside rules apply to a written agreement with each spouse's signature witnessed by at least one other person. The same person can witness both signatures, and no notarization or lawyer's signature is required.

On a spouse's application, the Supreme Court may set aside or replace all or part of such an agreement only if one of the listed circumstances existed when it was made. These are failure to disclose significant property, debts or relevant information, taking improper advantage of vulnerability, not understanding the nature or consequences of the agreement, and other circumstances that make a contract voidable at common law.

The court may also act if the agreement is significantly unfair, looking at the time since it was made, the intention to achieve certainty, and how much the spouses relied on it. It may decline to act if it would not replace the agreement with an order substantially different from its terms. An unwitnessed signed agreement is not automatically void, but it is not clearly within the protected regime.

What to do next

If you are living together, or about to, a few steps help the agreement stand up and keep it useful:

• Write down the date you began living together in a marriage-like relationship, since it fixes when the relationship starts.
• Exchange full lists of property, debts and income before signing.
• Sign the agreement and have each signature witnessed.
• Get legal advice before making final decisions about dividing property and debt, which the Province advises.
• Revisit the agreement if your circumstances change, for example if you marry, buy a home or start a business.
• If you separate, note the date, because the time limit for applying for a court order about property is two years from separation for unmarried couples.

Frequently asked questions