It is becoming more common for couples who are residing in a “common law” relationship, or who intend to do so, to enter into a cohabitation agreement to set out their rights and obligations as cohabitants.
In PEI, the definition of a spouse includes two people who are legally married; two people who live together in a conjugal relationship and are the natural or adoptive parents of one or more children; or two people who have lived in a conjugal relationship for three or more years. This definition of spouses is inclusive of same-sex couples. While the above outlines the definition of “spouse” according to law, it is not necessary for a couple to be considered “spouses” as per the definition to enter into a cohabitation agreement.
What is a cohabitation agreement?
A cohabitation agreement is an agreement entered into by two unmarried people who plan to (or do presently) live together. A cohabitation agreement outlines the rights and obligations of the spouses during cohabitation, after cohabitation if the relationship terminates, and on death.
What is included in a cohabitation agreement?
Section 52.(1) of the PEI Family Law Act outlines what can be included in a cohabitation agreement, such as the ownership or division of property; support obligations; any other matter in the settlement of their affairs; and the right to direct the moral training and education of their children. As per s.55.(1) of the Act, the right to direct the education and moral training of children is subject to the best interest of the child. Cohabitation agreements cannot include the right to custody or access to children.
When can a cohabitation agreement be entered into?
A cohabitation agreement can be entered into at any time prior to the cohabitation, or during the cohabitation.
What is required & when does a cohabitation agreement end?
In order for a cohabitation agreement to be legally binding, it must be in writing and the agreement must be signed by the couple and by a witness. Considering that cohabitation agreements can be reviewed and invalidated by a Canadian court, it is best to have a lawyer draft the agreement and advise you as to your rights and obligations.
A cohabitation agreement is considered to be a domestic contract. Section 55.(4) of the Family Law Act outlines the setting aside of a domestic contract:
A court may, on application, set aside a domestic contract or a provision in it
(a) If a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) If a party did not understand the nature or consequences of the domestic contract; or
(c) Otherwise in accordance with the law of contract.
If parties who have entered into a cohabitation agreement decide to marry each other, under s.52.(2) of the Family Law Act, the agreement shall be deemed to be a marriage contract.
While a cohabitation agreement is not required in order for couples to live together, having such an agreement is a proactive step in asserting your rights and obligations as they pertain to your relationship and the possible termination of the relationship.
If you would like more information on your rights as a person cohabiting in a relationship, please do not hesitate to contact one of the experienced family law lawyers at Key Murray Law.
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.