Living together- Why you might want a cohabitation agreement

Author: Sherri D Moss |

So you and Mr. or Ms. Right have decided to live together. You have no foreseeable plans to marry. You may think, " problem, we're not married, so we have no obligations to one another." You would be wrong.

First, in terms of spousal support, in Ontario, the definition of spouse for the purposes of spousal support includes either of 2 persons who are not married to each other and have cohabited (a) continuously for a period of not less than three years or (b) were in a relationship of some permanence, if they are the natural or adoptive parents of a child. It does not just apply to married spouses. Without a cohabitation agreement in which support is waived, you may be liable to pay spousal support should you and the other party separate.

If the other party has a child, you may think, "No problem, his or her child is not my biological child, so I won't have to pay child support if we separate. "You would be wrong. Even if the child's biological parent is on the picture, if you have demonstrated a settled intention to treat the other party's child as a member of your family, you may be found liable to pay child support if you and the other party separate. There are a number of factors that come into play here, so you should get legal advice based on your specific circumstances.

Regarding property, you may well think, "No problem, I'm not married so (s)he has no claim to my property. "You're right in terms of Ontario's family law legislation, but if the other party has helped you to acquire an asset or had a part in any increase to its value, he or she may make a claim based on what they would contend is their equitable interest in the property. Think for example about the home renovations your significant other has paid for or helped pay for.

So at this point you may be thinking, "Surely if I die s(he) and their child has no right whatsoever to my estate". You would be wrong. Under Ontario's Succession Law Reform Act, "Where a deceased (whether dying with or without a will) has not made adequate provision for the proper support of his or her dependants a court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them." Dependant means the spouse, parent, child, or a brother or sister of the deceased. The definition of spouse and child are the same as noted above. You do not have to be married to be a spouse and you do not have to be biologically related to a child to be a parent.

So, bottom line, you may wish to protect yourself from the claims noted about by entering into a cohabitation agreement.

If you do, you should also know that, should you marry, under Ontario legislation, a cohabitation agreement is automatically deemed to be a marriage contract.