Cohabitation agreements are powerful tools for partners living together without being married. These legal documents provide clarity around finances, property, and responsibilities, and they’re especially important for common law partners who don’t benefit from the same legal protections as married couples. But what happens when a relationship ends or circumstances change – can a cohabitation agreement be broken?
The short answer: not easily, but yes – under specific circumstances. In this post, we’ll explore what makes a cohabitation agreement valid, when it can be challenged or updated, and how Canadian law treats common law cohabitation (spoiler alert – not all provinces are the same). Whether you’re in Ontario, British Columbia, or elsewhere in Canada, this guide will walk you through what you need to know.
Challenges with Cohabitation Agreements
Legal Insights on Whether a Cohabitation Agreement Can Be Broken
Cohabitation agreements, like other contracts, are binding if properly drafted and signed. But there are cases where they can be challenged in court. These include:
- Unconscionability: If the agreement is so one-sided it shocks the conscience of the court, it may not be enforced. Courts are unlikely to uphold an agreement that leaves one person destitute at the end of a relationship.
- Failure to disclose: If one partner wasn’t fully honest about their circumstances when the agreement was made, or hid significant financial information, the agreement may be invalidated.
- Changed circumstances: If there’s a major change that wasn’t contemplated when the agreement was made – like having children, one partner becoming disabled or leaving the work force – the agreement might be reconsidered.
- Lack of independent legal advice: If one partner didn’t get independent legal counsel, a court may question whether they fully understood the agreement. While independent legal advice is not mandatory for an agreement to be valid in most provinces, it’s always a good idea if you can afford it.
These legal principles help protect both parties but can also complicate enforcement if not addressed properly at the drafting stage.
Navigating Breakups with a Cohabitation Agreement
When a common law relationship ends, having a cohabitation agreement can ease the transition. If you already have a cohabitation agreement in place, it may outline how property, debt, and other matters will be handled. If not, you may need to start from scratch when you’re trying to reach a separation agreement. As you can imagine, coming to an agreement with your partner at the beginning of a relationship tends to be significantly easier than it is at the end of a relationship when tensions are running high.
Having a clear and fair plan in place – especially one you created together when things were amicable – reduces the risk of drawn-out disputes at the end of a relationship, which are often costly and emotionally draining.
Considerations Before Signing a Cohabitation Agreement
Discussing Expectations and Boundaries with Your Partner
Before signing any legal document with your common law partner, it’s essential to have some frank conversations about your expectations for your future. What are your shared and individual financial goals? How will you divide expenses? What happens if one of you wants to buy a house but the other isn’t ready? What are your current debts and assets?
These discussions aren’t always easy, but they are crucial to ensure your agreement reflects your real-life expectations and doesn’t lead to misunderstandings down the road.
How a Cohabitation Agreement Can Strengthen Communication
Surprisingly, many couples find that negotiating a cohabitation agreement actually brings them closer. It forces honest dialogue and helps each person feel seen and heard. If approached with respect and a focus on mutual protection, it’s not just a legal tool – it’s a relationship-strengthening experience.
Updating or Amending a Cohabitation Agreement
When to Revisit Your Agreement
Your agreement should grow with your relationship. You may want to update your cohabitation agreement if:
- You’re buying property together
- One partner is pausing their career to raise children or take care of aging parents
- You’re moving to a different province
- One of you receives a significant inheritance or a financial shift occurs.
Any major life event is a good time to revisit your agreement and ensure it still serves you both. You may decide your agreement still makes sense despite your change in circumstances, or you may decide that it’s time to make a change.
Legal Process for Making Changes Over Time
Changing a cohabitation agreement doesn’t have to be difficult. You can:
- Review your existing agreement together.
- Work with a lawyer (or use a platform like Jointly) to redraft the necessary sections or make a new agreement.
- Sign and date the new version, ideally with updated legal advice.
Like any legal contract, clarity, fairness, and disclosure are key to making updates enforceable. There is no limit to the number of times you can revisit and update your agreement. Doing it regularly is a great way to make sure your agreement isn’t overturned later if there is a dispute.
Understanding Cohabitation Agreements
What a Cohabitation Agreement Is
A cohabitation agreement is a legal contract between two people who are living together (or planning to live together) in a romantic relationship. It outlines:
- Property ownership
- Division of expenses
- Rights in case of separation
- Debt responsibilities
- Spousal support (also sometimes called alimony)
Cohabitation agreements serve the same purpose as agreements made by married couples. They’re called different things – prenups, postnups, marriage agreements or marriage contracts – but the subject matter is the same.
Legal Clarity for Common-Law Couples
Many people assume they automatically have rights after living together for a certain period. But that’s not always true. In Ontario, for example, common law partners don’t automatically share property rights the way married couples do. A cohabitation or common law agreement can provide the clarity and protection that the law doesn’t guarantee. Because the legal protections aren’t as strong if you are in a common law relationship, getting an agreement is often even more important for unmarried couples than it is for married couples.
Legal Framework for Cohabitation Agreements
Knowing Your Rights Under Canadian Cohabitation Law
Canadian law varies by province when it comes to common law partners. There’s no universal definition of when you become common law – though it typically ranges from 1 to 3 years of cohabitation. Rights around property, support, and family law differ significantly depending on where you live.
For example:
- Ontario: Property is not automatically divided between common law partners. This includes the home where you live together, if only one of you owns it.
- British Columbia: Common law partners (after 2 years) are treated similarly to married couples when it comes to property.
Understanding the rules in your province is critical. That’s why agreements tailored to local laws are so important.
Provincial Considerations for a Common Law Agreement
Here’s a brief look at how cohabitation laws differ:
| Province | When You Become Common Law | Property Division Rules |
| Ontario | 3 years (or less with a child) | No automatic property division |
| BC | 2 years | Equal division of property and debt |
| Alberta | 3 years | New legislation (Family Property Act) applies |
| Quebec | No automatic legal status | Must sign agreements to have rights |
A common law agreement in Ontario or a common law agreement in BC needs to reflect these legal realities.
Drafting and Enforcing Cohabitation Agreements
Steps to Getting a Cohabitation Agreement
Creating a legally sound agreement involves several steps:
- Have the conversation: Talk with your partner about what you both want to include.
- Use a trusted platform: Tools like Jointly make it easy to draft your agreement online together.
- Get legal advice: While not required in all provinces for your agreement to be valid, it is a good idea to get a certificate of independent legal advice if you can afford it.
- Sign and date the agreement: And keep a copy in a safe place.
This process ensures that the agreement is enforceable, respectful, and truly reflects your intentions.
Property and Financial Considerations
Securing Assets with a Cohabitation Property Agreement
Without a cohabitation agreement, your assets could be vulnerable. For example, if you bought a house before your partner moved in, a dispute over its value or ownership could arise. Your agreement should clearly outline:
- Who owns what
- How increases in value are shared (or not)
- What happens if you separate
This is especially critical for business owners or people with significant pre-existing assets.
Addressing Shared Finances with a Common Law Partnership Agreement
Many common law partners share expenses, take on joint debt, or even run businesses together. A cohabitation agreement can lay out how finances will be managed, who is responsible for what, and how income or investments are shared during your relationship and if it ends.
This isn’t just about breakups – it’s about everyday clarity and financial harmony.
Comparing Cohabitation and Marriage
Key Distinctions Between Common Law and Marriage
While both marriage and cohabitation involve romantic partnerships, the legal implications are vastly different. For example:
- Married couples automatically share property and spousal support rights.
- Common law partners may need to prove entitlement – and that varies by province.
Understanding the difference between common law and marriage is essential before deciding how to legally structure your relationship.
Clarifying the Terminology in Cohabitation and Common Law
The language can be confusing. Here’s a breakdown:
- Cohabitation: Living together in a relationship
- Common law partner: Recognized after a certain period of cohabitation (varies by province)
- Cohabitation agreement: A contract between non-married partners who live together, outlining legal rights
- Common law agreement: Can be used interchangeably with cohabitation agreement, but typically refers to agreements tailored to non-married couples
Whatever terms you use, what matters most is that your agreement reflects your life and your values.
Why Choose Jointly for Your Cohabitation Needs
At Jointly, we know that love doesn’t come with a legal manual – but we believe protection should still be accessible. We provide a user-friendly online platform that empowers Canadian couples to create personalized, legally sound cohabitation agreements – without spending thousands on legal fees.
- Affordable: A fraction of the cost of traditional legal services
- Accessible: Do it from your home, on your time
- Reliable: Built with guidance from experienced family lawyers
- Empowering: You know your relationship best – we help you protect it
Ready to create your cohabitation agreement? Get started for free with our Agreement Starter Kit.
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