If you and your spouse live together and then break up, you might end up disagreeing about your property, savings, and debt.
It can be easier to agree about these things if you make a written agreement before you start living together. These agreements are called cohabitation (living together without being married, which people sometimes call being in a common-law relationship) or marriage agreements.
A cohabitation agreement changes how the law applies to your situation if you separate, so it's important to get legal advice before you sign one. You'll probably be giving up some rights.
See Tips about getting legal help for where to find a lawyer. And see What is independent legal advice? to find out why you and your spouse need to use different lawyers.
Here we use the term "cohabitation agreement" to mean cohabitation and marriage agreements.
You can make a cohabitation agreement:
- before or while you're cohabiting (living together in a marriage-like relationship), or
- before or during your marriage.
How do you make a cohabitation agreement?
Before you make a cohabitation agreement, you and your spouse need to sit down and make a list of:
- everything you have, including any savings, TFSAs, or RRSPs, and
- your debts.
This means you'll both know what you started off with if you break up.
Talk about how you'd want to deal with property, savings, debt, and spousal support if you break up. Make sure you understand how this might be different from what would happen if you didn't have an agreement.
Call around to see if you can find a lawyer who'll help you write the agreement for a fee you can afford. Many lawyers charge a set fee for writing agreements like this.
If you write your own agreement, sign and date it. If it deals with property or spousal support, at least one other person must witness (watch) you sign it. The same person can be a witness for both spouses. The witness signs and dates the agreement as well.
What can be in the cohabitation agreement?
A cohabitation agreement can cover:
- How to divide family property, like real estate, possessions, and pensions.
- How to divide any debts.
- Whether one spouse should receive spousal support.
- What to do if you can't agree (for example, will you use mediation?).
What can't be in the cohabitation agreement?
The agreement you make before or after you start living together can't deal with parenting issues (for example, parenting time and parental responsibilities) and child support after you separate.
You can write about those things in the agreement, but the court won't enforce them if you break up. The only exception is if you make your agreement because you've decided to separate but you're still living together in one house.
What if you don't have a cohabitation agreement?
You can still make an agreement after you break up. This is called a separation agreement. It's a bit more complicated than making a cohabitation agreement but there are people who can help you. See Making an agreement after you separate and Who can help you reach an agreement? to find out more about this.