If you are not married and you are wanting live with your partner, you may wish to consider protecting your rights, obligations and property by signing a Cohabitation Agreement. Cohabitation Agreements are used to determine mutual rights and obligations at the beginning of a relationship.
If you have a properly drafted and signed Cohabitation Agreement, it will likely assist in reducing stress, uncertainty, and expense if your relationship ends. Questions about Cohabitation Agreements arise frequently. Top questions include “What is a Cohabitation Agreement?” and “Why should I have one?” (See here for answers to those FAQs).
Read on for more answers to other important Cohabitation Agreement FAQs.
What happens if we don't have a Cohabitation Agreement?
BC family law sets out the framework for how property is divided when spouses separate. Generally speaking, the rules in our province say that spouses share equally in any property they acquire during the course of their relationship, but not property brought into the relationship (though the increase in value of such property over the course of the relationship can be subject to division).
The property division rules apply to married spouses and to common-law spouses.
In BC, an unmarried couple who have lived together in a marriage-like relationship for at least two years are considered common-law spouses. This means that common-law spouses are treated the same as married spouses when it comes to issues such as division of property.
So if you do not have a signed Cohabitation Agreement, the default rules in BC’s Family Law Act will automatically apply should your common-law relationship come to an end. The good news is that you can opt out of the default family law rules by signing a Cohabitation Agreement.
A Cohabitation Agreement is essentially a prenuptial agreement for unmarried spouses.
What happens to our Cohabitation Agreement if we get married?
A Cohabitation Agreement may address the prospect of marriage and specify what happens to the Agreement if the spouses get legally married. For example, your Cohabitation Agreement can be worded so that it continues in force after the marriage, terminates on marriage, or must be reviewed and revised at the time of the marriage.
What happens if we need to change our cohabitation agreement?
Circumstances and relationships change over time. As years pass, your Cohabitation Agreement may no longer reflect your intentions or situation even if you do not get legally married. Major life changes such as the birth of a child or start of a business are events that should cause you to revisit your Agreement. Common-law spouses can update or cancel a Cohabitation Agreement at any time as long as both parties to the agreement agree to do so. This Supplemental Agreement should be in writing. Changes to an existing Cohabitation Agreement can be made by an “Amending Agreement” or an “Addendum Agreement.” The new agreement can change some parts of the original agreement or cancel and replace it altogether. To be effective, the changes must meet certain requirements, including being in writing, signed, and witnessed by an independent adult person.
Can a Cohabitation Agreement be set aside?
Cohabitation Agreements are open to challenge by one or both of the parties to the agreement. If disputed, the agreement may end up being unenforceable. A Cohabitation Agreement may not be valid if the parties do not follow appropriate legal procedures in the way the agreement is negotiated, drafted, executed, and witnessed. BC courts can set aside all or part of a cohabitation agreement if it is found to be significantly unfair.
The test of “unfairness,” which is set out in BC’s Family Law Act at section 93, will be met if certain circumstances existed when the parties entered the agreement. For example:
Where a party hides significant property or debts, or other information relevant to the negotiation of the agreement.
Where one party to the agreement has taken improper advantage of the other party’s vulnerability, ignorance, need or distress.
Where one party to the agreement did not understand the nature or consequences of the agreement ; that is one party did not understand what the agreement means or how the agreement changes what they might have otherwise been entitled to.
Even if none of the circumstances set out above existed when the agreement was made, BC courts can still set aside or replace all or part of a Cohabitation Agreement if its terms have become significantly unfair since the agreement was made. This is another good reason to revisit your Cohabitation Agreement every so often.
The best way to ensure fairness and enforceability is for each party get independent legal advice from a family law lawyer before signing the Agreement.
Talk to an experienced BC Family Lawyer
A Cohabitation Agreement changes how the law applies to property and debt if you separate. If you have questions about how a Cohabitation Agreement can protect you and your partner, or you are looking to have a Cohabitation Agreement drafted and prepared for you, contact Valerie M. Little Law Corporation for guidance.
Ms. Little is a family lawyer who has been practicing family law for over 30 years. Reach out today to schedule a consultation:
No matter what family law questions or issues you might be dealing with, you will receive attentive care and understanding at the office of Valerie M. Little Law Corporation.