If you are in a relationship where you’ve decided to live with your partner but do not intend to get married, a cohabitation agreement, much like a marriage contract, can establish your rights and obligations in the event the relationship ends. If you do ultimately decide to get married, such agreements usually include a clause stating that the agreement will automatically become a marriage contract at that time.
Given that cohabitation agreements cover so many important subjects, such as property division, and since the law in Ontario treats property issues differently depending upon whether you are married or not, you should consult with a Toronto family lawyer to understand how such matters are dealt with and how you can protect your interests. If you already have a cohabitation agreement, it may need periodic review to address changing circumstances during the course of your relationship.
If you do enter into a cohabitation agreement, you of course want it to be valid and binding, and consulting with a Toronto family lawyer is the best way to ensure that it is. Many factors will determine if your cohabitation agreement will be enforceable, but two crucial ones are:
- Receiving independent legal advice: It is essential that you and your partner are each represented by your own lawyers. If you both use the same lawyer to draft the cohabitation agreement and you wind up disputing the agreement in court, a judge will probably consider this dual representation to be a conflict of interest and the cohabitation agreement will likely be overturned.
- Making a full financial disclosure: In order for a cohabitation agreement to be legally binding, both parties must exchange full financial disclosure. Your family law lawyer will assist you with this.
Before you even raise the idea of a cohabitation agreement with your partner, it is highly advisable to discuss the issue with a family lawyer. You may find that because of your particular circumstances, your lawyer recommends against having a cohabitation agreement. If this turns out to be the case, you won’t need to bring up the issue with your partner at all.