Do You Need a Lawyer to Make a Cohabitation Agreement in Ontario?

Online templates make a do-it-yourself cohabitation agreement look easy. Many couples wonder whether a lawyer is really required, or whether a signed template is enough.

The short answer is that the law sets formal signing requirements, and a lawyer is not one of them. But the risks of an unreviewed agreement are real, and this article explains what they are.

What makes an agreement valid on its face

A domestic contract, including a cohabitation agreement, and any agreement amending or rescinding one, is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance says both partners must sign in front of a witness.

The section does not list independent legal advice as a formal requirement. So a lawyer is not needed just to meet the signing formalities. The question is whether the agreement will hold up if one partner later challenges it.

Why couples sign one in the first place

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, including ownership or division of property, support, and any other matter in settling their affairs. The wording means an agreement can be signed after the couple has already moved in.

This matters because the default rules for unmarried partners are limited. Ontario says 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, household items and other property belong to the person who bought them.

A partner who contributed to property the other owns may have a right to part of it. If the owner will not agree to repay, the partner may have to go to court. For support, unmarried partners can count as spouses if they have cohabited continuously for at least three years, or are in a relationship of some permanence and are the parents of a child. An agreement lets you spell out your own terms instead of leaving these questions open.

Why lawyers are still recommended

Ontario's guidance advises that partners should speak to different lawyers and exchange financial information before signing. The reason shows up in the rules on challenging an agreement.

A court may set aside a domestic contract, or any provision in it, if a party failed to disclose significant assets, debts or other liabilities that existed when it was made, if a party did not understand its nature or consequences, or otherwise under the law of contract. Independent advice is one way to show each partner understood what they signed.

Risks of a DIY or unreviewed template

• Support waivers may not hold: a court may set aside a support provision or waiver, even if the contract excludes the usual support section, where it results in unconscionable circumstances, where the dependant qualifies for support from public money, or where support under the contract is in default.
• Children's terms are limited: the agreement cannot fix decision-making responsibility or parenting time. A court may disregard an unreasonable child support term, and education or parenting terms where doing so is in the child's best interests.
• Gaps and unclear wording: a template may not fit your assets, and a poorly worded term may not do what you intended. A domestic contract that deals with a matter also covered by the Family Law Act generally prevails unless the Act provides otherwise, and the Act does provide otherwise in some places, such as support waivers and child-related terms, so errors can carry weight.
• Marriage later: if you marry each other, the agreement is deemed to be a marriage contract. A provision that tries to limit a spouse's matrimonial home rights is unenforceable.
• Missing formalities: an agreement that is not witnessed or signed properly is unenforceable.

What a cohabitation agreement can and cannot do

If you already live together and have not signed anything, you may still make an agreement, and separated couples can make a separation agreement setting their rights and obligations.

What to do next

• Decide what you want the agreement to cover: property, support, debts, the home.
• Exchange complete financial information with your partner before signing.
• Have each partner speak with their own lawyer.
• Sign in writing, with both partners signing and a witness present.
• Keep copies of the disclosure you exchanged, since non-disclosure can lead to a challenge.
• If you used a template already, have a lawyer review it before relying on it.

Frequently asked questions