A cohabitation agreement is a legally binding domestic contract between unmarried partners who live together, or intend to live together, in a conjugal relationship. These agreements are governed primarily by Part IV of the Family Law Act and allow couples to proactively define their financial rights and obligations during their relationship and in the event of separation or death.
Unlike married spouses, common-law partners do not automatically acquire property rights upon separation. As a result, a properly drafted cohabitation agreement is one of the most effective tools available to protect both parties, reduce uncertainty, and minimize the risk of costly litigation.
Requirements and Best Practices
To be enforceable, a cohabitation agreement must be in writing, signed by both parties, and witnessed. It must also be entered into voluntarily, without pressure, coercion, or duress. While independent legal advice is not strictly required by law, courts strongly favour agreements where each partner has obtained their own legal advice, as this helps demonstrate that both parties understood the nature and consequences of the agreement.
Equally important is full and honest financial disclosure. Each party should disclose all assets and liabilities, sources of income, business interests, pensions, investments, and any significant future entitlements. Failure to provide complete financial disclosure is one of the most common reasons domestic contracts are later set aside by Ontario courts.
Property Division
A central purpose of a cohabitation agreement is to address the ownership and division of property. Unlike married spouses, common-law partners do not benefit from statutory property equalization under the Family Law Act, meaning property generally remains with the person whose name is on title unless equitable claims such as unjust enrichment or constructive trust arise. A cohabitation agreement allows couples to avoid uncertainty by clearly defining ownership of the shared residence, how property acquired during cohabitation will be treated, and how jointly purchased assets will be divided.
Spousal Support
Cohabitation agreements may also address spousal support. Common-law partners may claim spousal support if they have cohabited continuously for at least three years or have a relationship of some permanence and share a child. Within the agreement, partners may establish a framework for support, limit or waive entitlement, or set conditions that trigger support obligations. However, courts retain the authority to set aside support provisions that are unconscionable and based on inadequate disclosure.
Estate Planning
A cohabitation agreement can also play an important role in estate planning by clarifying each partner’s rights upon death. When coordinated with wills and other estate planning documents, these provisions help ensure clarity and protect intentions.
If you’re looking for more information, read our previous blogs or consult one of our family law professionals. They can help you write a cohabitation agreement that ensures you and your spouse are well protected. Contact our team for more information.
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
