Does a Cohabitation Agreement Survive If We Later Marry in Ontario?

If you and your partner signed a cohabitation agreement while living together and are now getting married, a fair question is whether that document still counts. It is a good question to ask before the wedding, not after a separation.

This article explains the general picture in Ontario: what each document is for, why marriage changes the property rules, and what to review and update. Whether your particular agreement carries over, and on what terms, depends on its wording, so it is worth confirming with a lawyer.

Two documents for two stages

A marriage contract is a legal document signed by couples before they get married to protect their rights if they split up, including rights to property. Couples in a common-law relationship can sign a similar document called a cohabitation agreement.

So the two serve similar purposes at different stages. Both can cover support, property division and who moves out on separation, and neither can say who has decision-making responsibility or parenting time for the children.

The question for couples who marry is how a document written for an unmarried relationship fits a married one. The general answer is that it should not be left to chance. Many couples sign a fresh marriage contract before the wedding so that their wishes are clearly stated for married life.

Why marriage changes the property rules

While you are common-law, you are not legally required to split property acquired while living together, and property generally belongs to the person who bought it. Once you are married, equalization applies: property acquired during the marriage must be split equally when the marriage ends for any reason, and courts can divide differently only in very special situations.

The equalization calculation compares each spouse's net property on separation with their net property on the date of marriage, and the larger share minus the smaller share, divided by two, is the payment. Your agreement may have been written with the common-law rules in mind. How the two fit together depends on the wording of your agreement, so it is worth confirming with a lawyer.

What to review before the wedding

Read your agreement line by line against your new plans. Terms that made sense when you were unmarried may not match what you now want. For example, an inherited family home does not count as excluded property and must be divided equally unless the spouses agree otherwise, for example in a marriage contract. If an inheritance is likely in your family, that is a point to address in writing.

• Property clauses: do they still match your plans now that equalization may apply?
• Family home: who owns it, and how should it be treated if you separate?
• Inheritances and gifts: should they stay with the person who receives them?
• Support terms: are they still what you both intend?
• Children: the agreement cannot decide parenting time or decision-making, so check that nothing in it tries to
• Assets and debts: has anything significant changed since you signed that you should share with each other before updating?

If the agreement is silent or unclear on any of these, that is a reason to speak to a lawyer rather than assume it works the way you hope.

Updating it properly

Both spouses must sign a marriage contract or cohabitation agreement in front of a witness, and the witness must also sign. Any later change must also be in writing and witnessed.

A casual understanding will not do. In one Court of Appeal for Ontario decision involving a cohabitation agreement, a later informal arrangement did not amend the contract because it was not in writing, signed by the parties and witnessed, as Family Law Act s. 55(1) requires.

Ontario's guidance advises that each partner use a different lawyer and that the partners exchange financial information before signing. A court may set aside a domestic contract or a provision in it if a party failed to disclose significant assets, or significant debts or other liabilities, existing when it was made, or if a party did not understand the nature or consequences of the contract. So give each other fresh, complete financial disclosure.

If a dispute reaches court, setting aside is a two-step process: the applicant must first show a listed circumstance, and the court then decides whether to exercise its discretion. A court can set aside a contract or provision in its entirety, but it cannot carve out particular assets or amend it. That is why it is safer to fix unclear terms now than to count on a judge to repair them later.

What to do next

Ideally, do this well before the wedding date, so neither of you feels rushed or pressured.

• Find your signed cohabitation agreement and any written changes
• Confirm that the signatures and witness signature are in place
• Update your lists of assets and debts and share them with each other
• Talk to a lawyer about how the agreement works once you are married, since that depends on its wording
• If you sign anything new, Ontario's guidance advises that each of you use a different lawyer
• Decide whether to sign a new marriage contract or a written, witnessed amendment
• Keep the signed documents together with your other important papers

If you have already married without reviewing the agreement, it is still worth getting it checked. A lawyer can tell you how your wording is likely to be read and what can still be put in writing.

Frequently asked questions