When couples start building a life together, they don’t always know what legal steps they should take to protect themselves. Two common tools are cohabitation agreements and prenuptial agreements (prenups). While these agreements cover similar territory, cohabitation agreements can have a more significant impact on the couple, depending on the law in your province. This guide breaks down everything you need to know about a cohabitation agreement vs prenup in Canada, so you can decide which one is right for your relationship.
The main difference between a cohabitation agreement and a prenuptial agreement lies in timing and marital status:
Both agreements can address property division, debt, spousal support, and more. The purpose of both types of the agreements is to make your own decision about how your property should be divided if your relationship ends, instead of relying on the rules put in place by the government through family legislation.
In general, Canadian law gives married couples automatic rights to share equally in family property in the event the relationship ends, meaning that everything that you built together as a couple during the course of the relationship will be divided between you. However, depending on where you live, that might not be the case if you’re not married. In much of Canada, couples who are not married (often referred to as common law), do not have property division rights similar to the rights of married couples. That means that making a cohabitation agreement is the only way to opt-in to sharing the assets you build together as a couple.
Despite their differences, these agreements share several core characteristics:
A cohabitation agreement is a legal document created by two people who are living together (or planning to) in a romantic relationship, without being legally married. It defines each person’s rights and responsibilities during the relationship and outlines how property, debts, and spousal support will be handled if they separate.
Couples might use a cohabitation agreement to:
A prenuptial agreement (or marriage contract) is signed before marriage and outlines how a couple will handle finances, property, and support during the marriage and if it ends.
Prenups are most often used to:
Whether you’re drafting a prenup or a cohabitation agreement, you can include a wide range of terms, such as:
You cannot use either agreement to limit parenting rights or responsibilities (such as child support or custody). Courts and legislators in Canada have decided that these issues must be decided based on the child’s best interests at the time of separation.
You should consider a cohabitation agreement if:
A prenup is the better option if:
Yes, both types of agreements are legally binding if they are made correctly. Cohabitation agreements and prenups must meet the following requirements:
Courts may set aside or modify an agreement if it’s found to be unfair, signed under duress, or lacking full financial disclosure.
Yes. If you have a cohabitation agreement and later decide to marry, the agreement can continue to be valid unless it states otherwise. In some provinces, a cohabitation agreement automatically becomes a marriage contract upon marriage.
However, some couples prefer to update or replace their cohabitation agreement with a new prenup that better reflects their plans as a married couple. Both prenups and cohabitation agreements should be seen as living documents, meaning that you should review and update them throughout the course of your relationship as your circumstances change.
Creating either agreement involves a few key steps:
Technically, you don’t need a lawyer to create a prenup or cohabitation agreement. But independent legal advice is strongly recommended because:
At Jointly, we help you build a legally strong agreement that you can take to a lawyer in your area for independent legal advice if you choose.
The right agreement depends on where you are in your relationship:
No matter your path, taking the time to create a clear, customized agreement is one of the most empowering and respectful steps you can take in a relationship. Get started today.
In many provinces, your cohabitation agreement will automatically convert to a marriage contract unless otherwise stated. Still, it’s a good idea to review and update the agreement before your wedding to ensure it reflects your current intentions.
You only need one agreement at a time. If you have a cohabitation agreement and then get married, you may want to revise or replace it with a prenup or postnup that reflects any changes to your relationship, finances, or goals.
Aimee SchallesHi, I'm Aimee, a co-founder of Jointly. I’ve been working as a lawyer in British Columbia for over ten years. I run a small law firm and love helping people solve everyday problems. I’ve seen the difficulties that ordinary people face in accessing reliable legal services. I’ve also seen many friends and clients go through challenging separations that could have been improved if they’d have had a prenup or cohabitation agreement. I hope Jointly helps people make the relationship agreement they’ve been thinking about! Latest posts by Aimee Schalles (see all)