Do you need a prenup (Cohabitation Agreement) for common law relationships?

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A prenup for common law relationships is called a Cohabitation Agreement, and is one of the five types of domestic contracts provided in Part IV of the Family Law Act (“FLA“) that are permitted in Ontario.

This type of agreement is similar to a prenup except that a prenup is for couples entering a marriage, whereas a cohabitation agreement is for unmarried or common law couples. These agreements are not necessary, but it is a responsible choice to establish your rights and responsibilities within your common law relationship.

Legal Notice:

If you are in a common-law relationship without a cohabitation agreement. You are passing rights to your assets over to the government. We work with you and your partner in a collaborative, easy approach to our agreements.

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What is a Cohabitation Agreement?

Cohabitation Agreements are utilized by unmarried couples or common law couples to deal with all financial aspects of the relationship, including rights and obligations in the event of a relationship breakdown or death, except custody or access to children.

You can sign your agreement before you and your partner start cohabitating or after you have already moved in together. But the sooner the better!

Section 53 (1) of the FLA, provides the respective rights and obligations that can be contemplated in the agreement:

  • ownership in or division of property;
  • support obligations;
  • the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and
  • any other matter in the settlement of their affairs.

What makes it valid?

Your cohabitation agreement will be valid if:

it is in writing;
signed; and

In order to ensure your agreement is not challenged in the future, it is important to consider independent legal advice.

Independent legal advice is not a formal requirement, but it is highly recommended to prevent any challenges to your agreement on other grounds, such as:

  • A party failed to understand the nature and consequences of the agreement;
  • A party failed to disclose a significant asset or debt in existence when the agreement was signed; or
  • Any other ground that an ordinary contract may be attacked: fraud, duress or undue influence.

Keep in mind: exact values in your agreement are less important, so long as the agreement is reasonable.

If you feel your circumstances are accurately represented in your agreement, then you always have the option to waive independent legal advice.

Need Independent Legal Advice?

Book a free consultation with one of the lawyers at Angrove Law. Available in Ontario, Alberta and Nova Scotia.

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What if we get married?

In Ontario, your cohabitation agreement will automatically transition to a marriage contract unless you stipulate in the agreement that it should not.

FAQs about Cohabitation Agreements

Can I write up my own Cohabitation Agreement?

Yes, you can download free cohabitation agreements that can be found online or use ChatGPT. However you’ll still end up fighting, because boilerplate online contracts are easily challenged in court. That’s why we always recommend to get your agreement completed with a lawyer that you trust and understand.

Do Cohabitation Agreements hold up in court?

There are many reasons an agreement may be considered invalid, and sometimes even the slightest error can make an agreement invalid. We highly recommend independent legal advice prior to signing the agreement to ensure you fully understand what you are signing.

Can I protect my house in a Cohabitation Agreement?

Yes! A cohabitation agreement can establish ownership in and division of property.

At Angrove Law, we can help with your cohabitation agreement and inform you of the limits of drafting within the law.

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