What is a Cohabitation Agreement?
A cohabitation agreement is a written document between you and your common-law partner that is typically made before or while you are living together.
It is a document that dictates how you will deal with issues while you are together and if the relationship breaks down. The agreement can include a variety of aspects, including the division of property and debts if there is a separation.
A cohabitation agreement, however, cannot say who gets custody or access to children in the event of a separation. This is because decisions about children must be based on the child’s best interest and are best made at the time of separation or divorce.
If you later decide to marry your partner, the cohabitation agreement automatically becomes a marriage contract.
What is a Marriage Agreement?
Similar to a cohabitation agreement, a marriage agreement (aka marriage contract or prenuptial agreement) is a document that stipulates the rules for spousal support and division of property in the event of a breakdown in the relationship.
In Ontario, the default position is that marriage agreement are enforceable as they relate to spousal support and property division. Just as it applies to cohabitation agreements, marriage agreements cannot stipulate who gets access or custody of children. Additionally, there are circumstances in which a party may set aside the contract if the negotiation or signing is deemed to be unfair.