Cohabitation is living together with a partner without marrying. Many couples in Calgary live very happily like this, committing to sharing possessions, assets and living costs without ever “tying the knot”.
Cohabiting couples often have legitimate concerns over the legal aspects of their relationship if they should ever separate. For married couples, the divorce process is enshrined in family law but what happens when there is no marriage?
Complications can result unless you have a legally enforceable document in place that protects your rights and outlines how assets/debts should be divided after separation.
The team at Spectrum Family Law in Calgary can help you create a cohabitation agreement that establishes asset ownership and other key aspects of the relationship in advance, so that confusion, acrimony, and disputes can be avoided if the relationship should come to an end.
What is a cohabitation agreement in Calgary?
A cohabitation agreement is like a marriage agreement (sometimes called “prenuptial” or “postnuptial” agreements) made between two partners who live together like spouses but are unmarried.
It usually covers the division of property, debts, and other assets if the relationship breaks down and the partners separate.
Such agreements are not dependent upon any formal or “common-law” marriage to be recognized by the Alberta courts, providing they have been drafted correctly.
For cohabitation agreements that deal with property, the Family Property Act of Alberta (FPA Alberta) is the main legislation that we need to refer to for guidance.
Why draft a cohabitation agreement?
Couples who never intend to marry often draw up cohabitation agreements for peace of mind and a layer of protection for personal assets and finances if the relationship breaks down.
It’s no surprise that relationships can end acrimoniously with a couple disputing over who gets what after the breakdown. The major reason for drafting a cohabitation agreement is to avoid problems like these and address such issues when everyone is calm and unemotional.
This can save both partners from stress, expense, and the inconvenience of litigation and enable a less painful separation.
If you have children, it is especially important to avoid the types of disputes that can be detrimental to future family relationships.
Business owners also often find great benefit from a cohabitation agreement that protects their venture in the case of separation.
Who should consider a cohabitation contract?
Any couple that lives together and is seeking greater certainty and predictability about the division of property if the relationship ends might consider drafting a cohabitation agreement.
The document can be drafted before or after the cohabitation commences — ideally, before the comingling of assets and finances has occurred.
Frequently, individuals in the following situations request cohabitation agreements:
- One individual owns property
- Both individuals own property jointly
- One or both individuals have accumulated significant assets
- One or both individuals own a business and want to protect it
- One or both individuals own or have a part share of a family farm that they want to protect
- One or both individuals have a pension that is growing
- The couple has children together
- One or both individuals have children from a previous relationship
- The couple is purchasing (or already owns) a home or other significant property jointly
- There is a large discrepancy between the salaries of the partners
- One or both individuals have a large unpaid debt
The above circumstances can involve large financial commitments. Even though unmarried couples living together may enjoy many of the automatic legal protections afforded to married couples under the FPA Alberta, a cohabitation agreement can provide extra protection.
Ultimately, anyone intending to cohabit with a partner and avoid potential complications and disputes in the event of separation can benefit by drafting a cohabitation agreement with one of our family lawyers.
Remember, it is far more difficult to discuss and settle contentious issues when the relationship has already soured.
How can our family lawyers protect you?
Not all cohabitation agreements are legally enforceable.
Section 38 of the Family Property Act of Alberta states that a cohabitation agreement is enforceable only if you and your spouse have each acknowledged the following in front of separate and independent lawyers:
- You are aware of the nature and effect of the agreement;
- You are aware of the possible future claims to property that you have under the FPA Alberta and are willing to give up those claims to the extent necessary to give effect to the agreement; and
- You are executing the agreement freely and voluntarily without any compulsion on the part of the other spouse.
Under Alberta laws, your lawyer has a legal advice obligation to advise you and your spouse about standard disclosure and how the law would treat your situation if you separated.
Our lawyers have a profound knowledge of the Family Property Act of Alberta and other relevant laws when creating cohabitation agreements. You can expect not only a professional and thorough approach but one that protects you and your finances should your relationship end.
What is usually included in a cohabitation agreement in Calgary?
Everybody’s financial situation is different so no two cohabitation agreements will be the same. Some assets or debts will be brought into the relationship and others will be created during it.
What you include in your cohabitation agreement with your partner should be discussed in detail between you and your respective lawyers.
Generally speaking, cohabitation agreements may cover the following issues (amongst others):
- The ownership/division of assets brought into the relationship (excluded from division?)
- The division of jointly purchased assets or property
- The division of individually purchased assets and property bought during the relationship
- The division of jointly and individually incurred debts
- Who will keep the family home?
- Who will pay for household/living expenses?
- The parental responsibilities/rights towards children from a prior relationship
- The decision-making responsibilities for children from the relationship
- Partner maintenance/support payment amounts and duration
- Inheritance rights in the event of death
Contact a cohabitation agreement lawyer in Calgary today
If you and your partner are entering a new phase of your relationship where you expect to cohabit — or you are already living together — speak to a lawyer from Spectrum Family Law in Calgary to discuss a cohabitation agreement.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
Our Calgary office is open 8:30 a.m.—4:30 p.m., Mon—Fri.
Dustin has zealously advocated for his clients at all levels of court in Alberta. Dustin has extensive civil litigation experience, as well as a background in family and divorce law.