Signing Requirements for an Ontario Cohabitation Agreement

A cohabitation agreement only helps you if it is valid. Many couples put real effort into the terms and then overlook the formal steps of signing, which can leave the whole document open to challenge.

This article walks through who can make an agreement, what the signing rules are, and the habits that make an agreement easier to defend later.

Who can make a cohabitation agreement

Section 53(1) of the Family Law Act says two unmarried people who are cohabiting, or who intend to cohabit, may make an agreement about their rights and obligations, including property and support. You can sign before you move in together or after you are already living together.

Cohabiting means living together in a conjugal relationship, whether or not the couple is married. The Act's definition of a cohabitation agreement refers to an agreement entered into under section 53.

Many couples want an agreement because Ontario does not divide property between common-law couples when they separate. Each partner keeps the property they bought, and neither has a right to share the other's increase in property value. There is an exception: a common-law partner who contributed to property the other owns may have a right to part of it, and unless the owner agrees to pay the contribution back, the partner may have to go to court.

The three formal requirements

The signing formalities are found in section 55(1) of the Family Law Act, which covers domestic contracts generally, including cohabitation agreements. A domestic contract is unenforceable unless it meets all of the following:

• It is in writing.
• It is signed by the parties.
• It is witnessed.

Ontario's guidance puts the practical point this way: both partners must sign a cohabitation agreement in front of a witness. Plan the signing as a single event where both of you and the witness are present, rather than passing pages back and forth.

Steps that protect the agreement

Meeting the formal test is the minimum. Ontario's guidance also advises that each partner speak to a different lawyer and that the partners exchange financial information before signing.

These steps matter because a court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets, debts or other liabilities that existed when the contract was made. A court may also set it aside if a party did not understand its nature or consequences.

• The partners exchange financial information before signing.
• Each person gets advice from their own lawyer, not a shared one.
• Nobody is rushed. Leave time to read, question and revise the draft.
• The witness is present when each person signs.

What an agreement can and cannot settle

A properly signed agreement is not the end of the story, because a court can still look at some terms. A cohabitation agreement may deal with the right to direct the children's education and moral training, but it cannot deal with decision-making responsibility or parenting time for the children.

• A court may disregard a provision about a child's education, moral training, decision-making responsibility or parenting time if doing so is in the child's best interests.
• A court may disregard a child support provision if it is unreasonable having regard to the child support guidelines and any other child support provision in the contract.
• A court may set aside a support provision or a waiver of support, even if the contract excludes section 33, if it results in unconscionable circumstances, the dependant qualifies for support out of public money, or support under the contract is in default when the application is made.

How these rules apply to your own terms depends on your situation, so it is worth confirming with a lawyer.

What changes if you later marry

If the parties to a cohabitation agreement later marry each other, the agreement is deemed to be a marriage contract. Many couples review their terms at that point because their circumstances have changed. How the agreement works after the wedding depends on its terms and your situation, so it is worth confirming with a lawyer.

What to do next

Use this short list when you are ready to sign, or when you want to check an agreement you already signed.

• Confirm the agreement is in writing.
• Check that both partners signed it.
• Check that a witness signed too.
• Keep records showing that financial information was exchanged.
• Keep a note of when each partner received legal advice.

If you are unsure whether an older agreement was signed and witnessed properly, a lawyer can review it with you before a dispute arises.

Frequently asked questions