Do You Need a Cohabitation Agreement in BC?

Moving in together is exciting, and talking about money can feel awkward. Still, many couples wonder whether a written agreement is worth the effort.

In British Columbia, the Family Law Act already has default rules for people who live together. A cohabitation agreement lets you decide whether to follow them or set your own terms. This article explains what is at stake.

This article covers the law of British Columbia.

What the law does if you have no agreement

A person is a spouse if they are married, or have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. Property division rules apply to unmarried couples who meet that test, and couples can opt out of those rules by agreement.

Spouses are generally equally entitled to and responsible for family property and family debt. Excluded property, such as property acquired before the relationship and inheritances, is kept out of that pool, although any increase in its value since the relationship began is generally shared.

Support works differently. A couple together less than 2 years who have a child together are still spouses outside the property and pension parts of the Act, so spousal support can apply sooner than property division.

What an agreement can cover

Spouses may make agreements dividing property and debt equally or unequally. A spouse may also agree in writing to release the other from spousal support.

• How property you each bring into the relationship will be treated.
• How property and debt acquired during the relationship will be divided.
• Whether you opt out of the default property division rules.
• Whether either of you releases the other from spousal support.
• How you will share the costs of a home you own or rent.

What an agreement can say about parenting is a separate question, so raise it with a lawyer rather than assuming it works the same way.

When a BC court may set an agreement aside

The court can set aside a witnessed written property agreement only on listed grounds, such as a spouse failing to disclose significant property or debts, or not understanding the agreement.

For spousal support, where a witnessed written agreement exists, the court may not order support unless the agreement is first set aside under s. 164. It can be set aside for reasons such as non-disclosure of income, property or debts, or if it is significantly unfair.

Even without an agreement, the Supreme Court may order an unequal division of family property or debt if an equal division would be significantly unfair.

Is an agreement worth it for you?

An agreement may be especially useful if one of you owns a home or has significant savings, a business or an expected inheritance, or if you want to avoid arguing later about who owns what. Without one, the default rules apply once you meet the two-year test.

An agreement is not a promise that every dispute is avoided. A witnessed written property agreement can be set aside if, for example, a spouse failed to disclose significant property or debts, or did not understand the agreement. Spousal support terms can also be set aside if they are significantly unfair.

What to do next

• List what each of you owns and owes now, including the home and any business interests.
• Share complete information about income, property and debts with each other.
• Decide together how you want to treat property owned before the relationship.
• Decide whether you want to address spousal support in the agreement.
• Make sure each of you understands the terms and has time to ask questions.
• Have the agreement put in writing and witnessed, and see a lawyer before signing.

Each of you may wish to get your own legal advice, which can help show that you understood what you signed.

Frequently asked questions