Cohabitation Agreements

What is a Cohabitation Agreement?

Whether you are currently cohabiting or planning to move in with your partner, you should consider entering into an agreement that sets out your rights and obligations should the relationship come to an end. 

The goal of a Cohabitation Agreement is to ensure both parties know where they would stand if the relationship were to end. When a relationship is over, there are so many emotions involved, that it can be extremely difficult to determine who is entitled to what. When there is a Cohabitation Agreement in place, both parties understand their rights and obligations, therefore it is easier to do what must be done without letting the emotional aspect take over. In particular, couples who have just begun living together (and do not necessarily meet the definition of a common law couple) could benefit from a Cohabitation Agreement.  

Disputes over assets and finances can be costly—not only from a financial standpoint, but emotionally as well. Cohabitation agreements allow partners to agree in advance on support payment, property ownership, and distribution of assets. While a cohabitation agreement could work the same for a married couple or for a cohabitating couple, the law treats these relationships differently. While a common law spouse may seek support from his or her partner, because they are not married, there is no right to seek equalization of matrimonial property and no possessory rights in the matrimonial home. A common law spouse may, however, have certain property rights when the relationship ends.  

Finalizing a Cohabitation Agreement requires that each partner retain his or her own family lawyer. Each party needs independent legal advice as well as full and complete financial disclosure by each party.  A Cohabitation Agreement can deal with one specific issue or can deal with many issues. As an example, one couple may choose a Cohabitation Agreement only to deal with the inheritance of one partner. A Cohabitation Agreement can be implemented at any point in the relationship, even after you have been living together and if the couple chooses to marry later on, the Cohabitation Agreement can automatically convert to a marriage contract.

How is a Cohabitation Agreement Used?

There are many different ways a Cohabitation Agreement can be used. Perhaps one couple chooses to be financially independent of one another—the Cohabitation Agreement can memorialize this by stating each party is responsible for his or her own financial support and has sole rights to his or her own property. A relationship that is more financially interdependent would naturally have different objectives in the Cohabitation Agreement. One important fact to know is that a testator’s will is revoked upon his or her marriage, subject to certain exceptions, however, a common-law relationship does not have the same consequences. 

What Can Be Included in a Cohabitation Agreement—and How Should It Be Prepared?

A Cohabitation Agreement must be prepared by an experienced lawyer to ensure it will be upheld in court if it were to ever be challenged. 

The following “rules” apply to the preparation of Cohabitation Agreements:

  • The Cohabitation Agreement must be in writing, the agreement must be signed by both parties, and it must be witnessed. 
  • Full financial disclosures must have been exchanged between the parties. 
  • Both parties must enter into the agreement voluntarily, i.e., neither person must be entering the agreement under any level of duress. 
  • To ensure both parties fully understand what they are signing, each party must have independent legal advice, so that the agreement is not unfair to one party or the other. 

As far as what can or “should” be included in a Cohabitation Agreement: 

  • The right to share in one another’s property
  • Any support obligations to each other
  • If just one person owns the home, both parties can agree on whether the non-owner will acquire an interest in the property if the relationship ends (an ex-partner who made investments in the home but does not legally own it can make an equitable relief claim against the home-owning party, but this is likely to be both costly and time-consuming. 
  • Entitlement to share in the other’s estate in the event of death

What Cannot Be Included in a Cohabitation Agreement?

Just as there are things that can and should be included in a Cohabitation Agreement, there are also certain things that cannot be included, such as:

  • Issues related to parenting plans and decision making relating to children.
  • Issues related to access to the child or children
  • Issues related to child support—unless the Cohabitation Agreement provides for an amount that is equal to or greater than the amount under the Child Support Guidelines

How Musson Law Firm Can Help

Discussing and agreeing on financial matters gives each common-law spouse a clear understanding of those matters in the event the relationship ends. Musson Law will provide a rational approach when families need help resolving personal and emotional disputes. When appropriate, we can help you identify alternate methods of settling disputes outside of court and will work with you to create documents such as a Cohabitation Agreement that will help you avoid these disputes altogether. When you choose Musson Law, you are choosing experience, skill, and knowledge. We will work hard on your behalf to protect you and your family, fighting for your rights and your future.  Musson Law will provide strong family law representation, along with the personal attention you deserve. For a comprehensive evaluation of your family law issue, contact Musson Law today. 

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