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Brahm D. Siegel

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We're Not Married -- Do We Need a Cohabitation Agreement?

Posted: 11/28/11 09:06 AM ET

Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.

Q: In your last column you mentioned something called a "cohabitation agreement." Can you explain what this is and why I might want one?

A: A cohabitation agreement is a signed agreement between two non-married people who are either living together or planning on living together. It deals with their rights and obligations in the event of a breakdown of the relationship. Cohabitation agreements are a terrific way of avoiding expensive and nasty disputes after a relationship fails since all of the parties' rights are spelled out in a contract.

Q: Do you have to have a lawyer to get one completed?

A: Technically no, but in order for both parties to be properly protected and to ensure the agreement is safe from attack later on if the relationship fails, by far the best practice is for lawyers to be involved. I almost never see a cohabitation agreement where only one side has counsel.

Q: Can we both use the same lawyer? We're completely on the same page.

A: No. A lawyer who represents both clients in a family law case, even a cohabitation agreement where both parties may appear to have the same interests, is looking for trouble with the Law Society and with one of the clients if the relationship breaks down. Both sides should have a family lawyer experienced in drafting these kinds of contracts.

Q: Why do we need lawyers anyways? What will they do for us?

A: First, they will listen to you and give you advice as to whether or not you really need one (not everyone does). Second, they will advise you as to what key terms you can, should, or want to include. Third, they will deal with the other lawyer, either in person or by correspondence, to help you negotiate the agreed-upon terms. Fourth, they will either be the primary drafter of the agreement or review what the other lawyer prepared and give you advice as to whether it's acceptable or some provisions should be changed.

Q: Do we need to exchange any financial documents? We know what we each have, so it seems like a waste of time.

A: Most good family lawyers will refuse to do a cohabitation agreement unless both parties attach detailed schedules of their assets and liabilities to the agreement. Doing so is important because it prevents the agreement from attack later on. The Ontario Family Law Act provides that a cohabitation agreement can be set aside if a party fails to disclose to the other significant assets, debts or liabilities existing at the time of the contract.

A: In my practice, sometimes instead of schedules I have my clients complete the Form 13 Financial Statement, which provides even more information than a simple schedule. I also accompany the form with key supporting documentation like tax returns and business financial statements, even if the other side has not requested it.

Q: Can my partner and I agree on anything in a cohabitation agreement? Are there limits as to what we can include?

A: Cohabitation agreements can deal with issues about ownership in or division of property, spousal support obligations and the right to direct the education and moral training of their children, but not the right to custody of or access to their children.

Q: Final question, what happens if we have a cohabitation agreement and we then marry?

A: If the parties to a cohabitation agreement marry each other, the agreement is "deemed" to be a marriage contract, commonly known as a "prenup." We'll talk about prenups in a future column but, for now, all you need to know is the agreement continues and binds the parties during marriage.

Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.