- A cohabitation agreement is unenforceable unless it is in writing, signed by the parties and witnessed.
- A court can set an agreement aside, or a provision in it, if a party failed to disclose significant assets or debts, did not understand it, or under the law of contract.
- Support waivers, child support terms and parenting terms can be overridden even when the agreement is otherwise valid.
If you and your partner are living together, or planning to, and are not married, you may be thinking about putting your arrangements in writing. A cohabitation agreement is the usual way to do that in Ontario. People often ask whether it will actually hold up if the relationship ends.
The short answer is that it can be binding, but only if it meets certain formalities, and a court keeps the power to set it aside or override some terms. This article explains the main rules under the Family Law Act. A lawyer can tell you how they apply to your situation.
What a cohabitation agreement can cover
Two unmarried people who are cohabiting, or who intend to cohabit, may make a cohabitation agreement about their rights and obligations, including property and support.
There are limits where children are concerned. The 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.
If the two of you later marry each other, the agreement is deemed to be a marriage contract.
What makes it enforceable
A domestic contract, including a cohabitation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed. A verbal deal, or a typed document nobody signed in front of a witness, is at real risk of not being enforced.
Ontario's guidance adds practical advice. Both partners should sign in front of a witness, each partner should speak to a different lawyer, and the partners should exchange financial information before signing.
- Put the agreement in writing.
- Have both partners sign it.
- Have the signatures witnessed.
- Each get advice from a separate lawyer.
- Exchange financial information before signing.
When a court can set the agreement aside
Even a properly signed agreement is not untouchable. 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, or otherwise in accordance with the law of contract. This is why open financial disclosure and independent advice matter so much.
Terms a court can override
Some parts of an agreement can be overridden even if the agreement as a whole stands. The table summarizes the main ones.
| Type of term | When a court may disregard or set it aside |
|---|---|
| Support provision or waiver | 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 |
| Child support | If the provision is unreasonable having regard to the child support guidelines and any other child support provision in the contract |
| Education, moral training, decision-making responsibility or parenting time | If disregarding the provision is in the child's best interests |
For support, the court may act under s. 33(4) even if the contract expressly excludes s. 33.
What to do next
If you are thinking about an agreement, or already have one, a few steps can help.
- Check that your agreement is in writing, signed and witnessed.
- Gather records of your assets, debts and income so disclosure is complete.
- Do not rely on the agreement to settle parenting questions, since it cannot deal with decision-making responsibility or parenting time.
- If you want to enforce, challenge or draft an agreement, speak with a family lawyer about your specific facts.
Frequently asked questions
Is a cohabitation agreement binding if we never signed it in front of a witness?
A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. Missing a witness is a serious problem, so get legal advice about your document.
Can we agree on parenting time in our cohabitation agreement?
No. A cohabitation agreement cannot deal with decision-making responsibility or parenting time, though it may deal with the right to direct the children's education and moral training. Even on those matters, a court may disregard a provision if that is in the child's best interests.
Can I give up spousal support in the agreement?
You can include a support term or waiver, but a court may set it aside and order support if it results in unconscionable circumstances, the dependant qualifies for support out of public money, or support under the contract is in default.
What happens to the agreement if we get married?
If the parties to a cohabitation agreement later marry each other, the agreement is deemed to be a marriage contract.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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