Cohabitation Agreements Between Common-Law Couples

If you and your partner are living as a couple, but are not married or in a civil union, you can create a cohabitation agreement, also called a “de facto union agreement” or “agreement between de facto spouses.”

The agreement defines your rights and responsibilities during the relationship and says what will happen to your property and children if you separate. 

Your rights depend on your situation

Common-law couples generally don’t have the same rights as married or civil union couples. Your rights and responsibilities depend on your situation. Here are some possible situations:

• You’re in a common-law relationship without children. 
• You’re in a common-law relationship and have one or more children. 
• You’re in a parental union.

Your situation affects what you can include in your written agreement. If you have doubts about the type of union that applies to your relationship, you can consult a lawyer or notary.

What you can include in your cohabitation agreement

You and your partner can decide what rights and responsibilities to include in your cohabitation agreement. However, your agreement must follow the law.

Here are examples of things you can include in your agreement:

• how to share your responsibilities and financial contributions while you’re together, 
• how to divide your property if you separate, 
•  how debts will be repaid if you separate, 
• the custody of your children if you separate, provided that the arrangement is in the best interest of your children, 
• the payment of money to you or your partner if you separate (but not if you’re in a parental union).

If you’re in a parental union, you have some rights that are already set out by law. For example, some of your property will be divided if you separate, like your family residence or furniture. But you can still prepare a written agreement that covers other things, like the custody your children.

What you can’t put in your cohabitation agreement

You can include all kinds of arrangements in your agreement as long as they follow the law. Here are examples of things courts have not allowed:

• an agreement that a parent will not pay child support for a child under 18, because children have a right to this support, 
• an agreement that your partner’s assets will be transferred to you when they die, because only a will can do this, 
• an agreement that is not in the best interest of your children.

If you’re in a parental union, some of your rights are already set out by law. For example, by law, you can ask for financial compensation from your ex-partner for your contributions during the relationship. Your cohabitation agreement can’t remove this right.  

It’s impossible to list every arrangement that might go against the law! When in doubt, contact a lawyer or notary.

How to prepare a cohabitation agreement

To prepare a cohabitation agreement, you must meet some criteria. You must be at least 18 years old, not be under tutorship or have an active protection mandate that applies to you. You must also be able to understand and agree to all the details of the agreement. 

You can create a cohabitation agreement any time during your relationship. Your agreement can be verbal, but it’s usually easier to prove the existence of a written contract if problems arise. You can change your agreement any time, but only if your partner agrees.

Ensuring that your cohabitation agreement is respected

When you sign a cohabitation agreement, you must respect it. If you separate, and you and your partner disagree on an aspect of your contract, or if one of you doesn’t follow it, you can go to court. You can also take part in a family mediation session. In some cases, the mediation sessions are free.