Cohabitation and Living Together Agreements

Cohabitation agreements are contracts signed by couples who plan to live together or who are already living together. Cohabitation agreements typically deal with things like how property and debt will be divided or whether spousal support will be paid if the relationship ends. Cohabitation agreements can also deal with things during the relationship, like how the housework is distributed and how the household expenses are paid. There is no legal requirement for people to sign a cohabitation agreement when they decide to live together.

This section talks about when and why cohabitation agreements are usually signed and the legal requirements of valid cohabitation agreements.

Entering into a cohabitation agreement

Cohabitation agreements, also known as "living together agreements," are usually signed before or shortly after a couple starts living together. A couple may enter into a cohabitation agreement with the intention of addressing things that might happen during the time they live together, the time they cohabit, but cohabitation agreements are most often intended to address the issues that might arise if their relationship breaks down.

It is important to know that there is no law that says you must sign a cohabitation agreement if you're living with someone or plan on living with someone.

The person you're planning on living with can't force you to sign a cohabitation agreement either. Deciding not to sign a cohabitation agreement might end your relationship, or stop you from living together, but that's your choice. You don't have to sign a cohabitation agreement.

Unmarried people and cohabitation agreements

The big difference between marriage agreements and cohabitation agreements is that people who sign a cohabitation agreement aren't married and may not intend to get married, or at least not just yet. Likewise, they may become unmarried spouses if they live together for long enough or they may not. As a result, it's important to understand exactly how the legal status of unmarried spouses differs from both the legal status of other unmarried couples, and from the legal status of married spouses, before you even start to think about a cohabitation agreement.

Married people have been legally married, either by a civil ceremony performed by a marriage commissioner or in a religious ceremony performed by a religious official, and are "spouses" under the Family Law Act. Married spouses who go to court are entitled to ask for orders under the Family Law Act about the division of property and debt, spousal support, and, if they have children, orders about parenting arrangements and contact.

An unmarried couple will become "spouses" for the purposes of the Family Law Act if:

• they've lived together in a marriage-like relationship for two years, or
• they've lived together in a marriage-like relationship for a shorter period of time and have a child together.

Unmarried spouses who have lived together for at least two years and go to court are entitled to ask for orders under the Family Law Act about the division of property and debt, spousal support, and, if they have children, orders about parenting and contact. Their rights are exactly the same as married spouses, except that it's only married spouses who must get a divorce to end their relationship. Married couples should read the discussion on Marriage Agreements in the next section of this chapter.

Unmarried spouses who have a child and have lived together for less than two years are only entitled to ask for orders about spousal support and, if they have children, orders about parenting and contact. They can't ask for orders about the division of property and debt under the Family Law Act.

In some situations, an unmarried couple can become spouses for the purposes of the Family Law Act even if they do not live together in the same house all of the time. In other situations, an unmarried couple may not become spouses if, even after living together for two years, their relationship isn't "marriage-like." If you are not sure about whether you would be a spouse for the purposes of the Family Law Act, it is a good idea to get legal advice about this issue as part of deciding whether you need an agreement.

An unmarried couple who aren't spouses under the Family Law Act can only ask for orders about parenting and contact. They can't ask for orders about the division of property and debt or spousal support under the Family Law Act.

For the purposes of this discussion, the critical distinction between unmarried spouses who have lived together and other unmarried couples lies in the different legal issues that arise when these different sorts of relationship come to an end. Here's a summary:

	Unmarried Spouses (together for two years or more)	Unmarried Spouses (together for less than two years but have a child)	Other Unmarried Couples
Divorce
Guardianship	Yes	Yes	Yes
Parental responsibilities and parenting time	Yes	Yes	Yes
Contact	Yes	Yes	Yes
Child support	Yes	Yes	Yes
Spousal support	Yes	Yes
Property and debt	Yes
Personal protection orders	Yes	Yes	Yes
Property protection orders	Yes

Legal issues about the care and financial support of children born to unmarried people are fairly straightforward, since these issues mostly depend on whether someone is a parent, not on the nature of the relationship between the parties. Whether the parents are also "spouses" doesn't matter.

Deciding whether a cohabitation agreement is appropriate

The most common reason why a couple signs a cohabitation agreement is to protect their separate property and income, so that each person's property going into a relationship is preserved and stays theirs if the relationship comes to an end. Sometimes one person wants to protect property from claims by the other person; sometimes a person will want to protect property from the other person's debts. Generally speaking, most couples who are thinking about executing a cohabitation agreement want a "I'll keep what's mine, you'll keep what's yours" sort of deal, and that's fine.

A couple might also enter into a cohabitation agreement to address spousal support if the relationship comes to an end. Sometimes a person will want to guarantee a certain minimum payment, but most often people want to be protected from having to pay spousal support at all. That's fine too, it happens all the time.

Cohabitation agreements are usually entered into when:

• the relationship is expected to be a long one,
• one or both parties have a substantial amount of property going into the relationship,
• one or both parties have significant debts going into the relationship,
• one of the parties has significantly more income than the other,
• one or both parties expect to acquire property during the relationship from, for example, a business, an inheritance, a court award, a gift, or employment income,
• one or both parties are bringing a child into the relationship, or
• the parties expect that spousal support may be an issue if the relationship ends.

Cohabitation agreements are generally not appropriate when:

• the couple are young,
• neither party has significant property or debt going into the relationship,
• neither party is bringing any children into the relationship, and no children are expected right away, and
• both parties are working out of the home and expect to continue working out of the home.

On top of these considerations, the Family Law Act also says that an agreement made before the parties have separated cannot deal with:

• parental responsibilities and parenting time, or
• child support.

Cohabitation agreements can also be useful to set rules for how the parties will manage things during the relationship, although this type of cohabitation agreement is fairly rare. When a cohabitation agreement is needed to deal with those issues, the parties' financial positions and plans for the future may not be as important.

The usual sorts of things a household management type of cohabitation agreement might be intended to address include:

• Who will pay for the household expenses? Will each party pay for a specific set of bills, or will the parties share all the bills, perhaps in a set amount?
• Will the parties keep separate bank accounts, or will they have a joint account for household expenses? If there is a joint account, how will each party contribute to the account?
• Who will do the household chores? Will each party be responsible for a list of particular tasks?
• How will children brought into the relationship be cared for? Will the other party assume any parenting tasks or adopt a parenting role?

If, at the end of the day, a cohabitation agreement is appropriate and desirable, the parties will negotiate the terms of the agreement and someone, whether a lawyer or one of the parties, will draft the written agreement. As with all family law agreements, it's important that both parties get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will affect those rights and responsibilities if their relationship comes to an end. Getting independent legal advice also strengthens the agreement by preventing one spouse from saying "I didn't know what it meant!" if the agreement is challenged later on.

Finally, a good cohabitation agreement should specify what will happen if the parties marry. The agreement could continue in effect after the marriage, terminate when the parties are married, or be reviewed and revised by the parties at the time of the marriage. In any case, the prospect of marriage and its impact on the cohabitation agreement should be dealt with in some manner.

Avoid do-it-yourself cohabitation agreement kits

Staples, Chapters, London Drugs, and other stores generally carry a wide range of DIY legal products, from doing your own will to getting your own divorce.

In my view, most of these do-it-yourself kits are fine for most people most of the time. However, cohabitation agreements can be complicated and must be drafted with a good knowledge of family law, about cohabitation agreements in particular, and the general law applicable in British Columbia. Using a do-it-yourself cohabitation agreement kit is not always a good strategy.

If you think that you absolutely must have a cohabitation agreement, it's well worth spending $1,500 to $4,000 to have a lawyer write it up for you, rather than spending $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.

Legal and formal requirements of a cohabitation agreement

The point of entering into a cohabitation agreement is so that, at some later time, the contract will be enforced by a judge if someone fails to live up to the responsibilities they've agreed to. As such, a cohabitation agreement, just like any other family law agreement, must conform to certain basic rules in order to be legally binding and enforceable, including these:

• A cohabitation agreement must be in writing. While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, a judge is not prohibited from making orders about property division that contradict a merely oral agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.
• The cohabitation agreement must be signed by each party and should be signed in the presence of a witness. Although an unwitnessed written agreement can be treated like a witnessed written agreement where the court finds it "appropriate to do so in all of the circumstances", it is a very good idea to have a witness so that they can confirm that the parties signed the agreement, in case one of them denies signing it in the future. As well, sections 94 and 165 of the Family Law Act prevent the court from making orders about property and debt or spousal support that have been addressed in a written and witnessed agreement unless the written agreement is aside.
• Neither party should be under a legal disability, like being under the age of majority or not being of sound mind, when signing the agreement. However, children who are parents or spouses may enter into a binding agreement.
• The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a family law agreement, you might want to think about certain other principles of contract law like these:

• The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
• Both parties must make full and complete disclosure of their circumstances going into the agreement. This disclosure should include complete information about each party's income and each party's assets and debts.
• Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may at some point in the future be interpreted by the court in favour of the party who didn't have the lawyer.
• The court will attempt to interpret and give a specific meaning to ambiguous terms of a contract wherever possible, rather than just setting the agreement aside.
• If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be binding on the parties.

Aside from these considerations, it's also important to remember that cohabitation agreements that deal with property and debts or issues like spousal support are usually only meant to be used when the relationship comes to an end, at some unknown time in the future. As a result, it can be difficult to guess what each party's situation will be like when the agreement begins to operate and whether it will still be appropriate and fair. Because of these problems, hiring the services of a lawyer to prepare a cohabitation agreement is highly recommended. Crafting a solid cohabitation agreement is a tricky business at the best of times.

Resources and links

Legislation

• Family Law Act
• Divorce Act

Links

• Agreements from Legal Aid BC
  • Under the section "Agreements" see "Making an agreement when you live together"
• Marriage Agreements and Cohabitation Agreements from Dial-a-Law by the People's Law School

Resources

• Living Together or Living Apart
  • See chapter 2 on "Living Together - Making Agreements"
• "Starting Relationships" video from JP Boyd, KC

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Beatrice McCutcheon, 22 November 2023.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.