By Rita Davie at HD Collaborative Law
A co-habitation agreement is a contract you enter into with someone you are living with or are planning to live with, usually in a common law relationship, that outlines your mutual expectations for what will happen if your relationship ends.
Each province and territory has its own set of rules about what is considered common law and how a common law separation could be handled, so it’s important to know the rules that apply in your jurisdiction. Unless you know the rules that apply to you and are willing to accept different possible outcomes regarding your property and support obligations, you may want to consider a cohabitation agreement.
What are mutual expectations?
Every family is different, but the issues to be sorted out when one breaks down are usually similar: how do we co-parent? How do we handle our property? How do we determine any financial support? The answers to these questions can be hard-fought when they must all be negotiated by two people who have recently separated. It makes sense to set expectations for some of the issues during a time when your head is clear and you are able to communicate openly and positively with your partner.
Not everything can be decided in advance. A co-habitation agreement will not tell you who will have custody of the children if the relationship ends, and it won’t say how much child support will be paid. These issues are subject to different rules and must remain open to account for what is in the child’s best interest at the time. A co-habitation agreement can set expectations around property (including debt, gifts and businesses) and spousal support (or lack thereof).
Doesn’t it ruin the romance?
Like anything, it depends on how it is approached. Certainly, when one spouse springs a complex and one-sided agreement on the other and asks him or her to sign it, things can turn negative and even hurtful. On the other hand, if the spouses are able to see it as an important part of relationship building and planning, it can be a positive and liberating experience.
Collaborative lawyers are a great resource for assisting with co-habitation agreements. Similar to the work we do during a separation, we assist co-habiting spouses in gathering the appropriate information, understanding the laws that apply, and reaching an agreement that everyone understands and feels protected by. Just like in other collaborative situations, everyone is at the table and hears the same information, resulting in a more robust and enduring agreement.