Do You Need a Cohabitation Agreement If You Live Together in Ontario?

If you are moving in with a partner, or already live together, you may wonder whether a written agreement is worth the effort. The default rules for unmarried couples are quite different from those for married couples, and many people are surprised by the gaps.

A cohabitation agreement lets you decide in advance how to handle money, property and support if you separate. This article explains what it can and cannot do, so you can decide whether it suits you.

What a cohabitation agreement is

Under the Family Law Act, two unmarried people who are cohabiting or intend to cohabit may make a cohabitation agreement. It can set their rights and obligations during cohabitation, on separation or on death. That can include ownership or division of property, support, the education and moral training of their children, and any other matter in settling their affairs.

Because the wording covers people already cohabiting, you can sign one after you have moved in.

What the default law gives you without one

Without an agreement, the general rules apply. Common-law couples are not legally required to split property acquired while they lived together, and they cannot share in the increase in value of property the other brought into the relationship. Furniture and household items belong to the person who bought them.

Matrimonial home rights use the married-only definition of spouse and do not cover unmarried partners. Support is more open: unmarried partners can qualify as spouses after three years of continuous cohabitation, or with a child and a relationship of some permanence, but support is not automatic.

An agreement can replace uncertainty with terms you chose. A domestic contract that deals with a matter also covered by the Family Law Act prevails unless the Act provides otherwise.

What an agreement cannot do

• It cannot fix decision-making responsibility or parenting time for children.
• A court may disregard a child support term that is unreasonable having regard to the child support guidelines.
• A court may disregard education or parenting terms where doing so is in the child's best interests.
• A court may set aside a support provision or waiver where it results in unconscionable circumstances, where the dependant qualifies for support from public money, or where support under the contract is in default.

Making it hold up

A cohabitation agreement, and any agreement amending or rescinding it, is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance also advises that partners speak to different lawyers and exchange financial information before signing.

That advice matters because a court may set aside a domestic contract, or part of it, if a party failed to disclose significant assets, debts or other liabilities that existed when it was made, or if a party did not understand its nature or consequences.

If you later marry each other, the cohabitation agreement is deemed to be a marriage contract. Any provision in a marriage contract that tries to limit a spouse's matrimonial home rights is unenforceable.

When it matters most, and what to do next

An agreement tends to matter most when one partner owns the home or brings significant assets, when one partner plans to reduce work to care for children or the household, or when either of you has a business, debts or a pension. It can also help if you want to record what happens on death.

• List what each of you owns and owes, and share it honestly.
• Decide what you want for the home, savings, debts and support.
• Remember that parenting arrangements cannot be fixed in advance.
• Each speak to your own lawyer before signing.
• Sign in writing in front of a witness.

If you have already separated, a separation agreement setting out your rights and obligations is a different option.

Frequently asked questions