COHABITATION AGREEMENTS ARE THEY REALLY NECESSARY?

More and more every day we are seeing couples that are deciding to live together rather than get married.  In fact the percentage rate of couples living in co-habitation as of 2011 was 16.7% which represented a staggering increase of 13.9% since 2006. This is the one group of types of family ( civil union ) households that had such a dramatic increase and is surpassing single-parent households.

The one aspect many couples do not think about when they commence co-habitation is the consideration of drawing up an agreement to be signed between them with regards to their duties and obligations both during their co-habitation periods and also in the event of the breakdown or rupture of their relationship. Unlike married couples, the only benefit that unmarried couples have from the law is that if they have been in a relationship as of July 1st, 1999, they can share and partition the insurable earnings from their Quebec Pension Plans.

A cohabitation agreement prepared by either a notary or an attorney can greatly assist the couple both during the relationship and after the relationship.

To start off with, a cohabitation agreement can be tailor made to exactly fit the couple and their concerns. The agreement can stipulate what financial and household obligations the parties have during the cohabitation period such as

  • who is responsible for the tasks around the home;
  • raising of the children;
  • the payments of debts;
  • household expenses; and
  • expenses relating to the children.

Every cohabitation agreement must fully disclose all the assets and financial situation of each party both prior to the cohabitation period and during the said period whether acquired separately or together. Given that the parties have entered into a contract, they should ensure that all purchases, payments and exchange of items and monies are clearly detailed and always in writing.

Last but not least, the parties should detail in the cohabitation agreement what shall occur in the event of a separation, namely with regards to the sharing of property that was acquired by the parties together , the possible payment of spousal support by one of the parties and the possible payment of a compensation by one of the parties to the other.

Needless to say that a cohabitation agreement can be so detailed that in the event of the breakdown of the relationship between the parties, the consequences of same may not result in requiring lengthy court battles.

There are however, certain aspects and items that cannot be contained in a cohabitation agreement as they pertain to aspects which are of public order. For example:

  • parental authority: (both parents share equally in the making of major decisions for the children)
  • custody rights: (the modalities can always be modified and adjusted in accordance to the actual situation)
  • visiting rights: (the modalities can always be modified and adjusted in accordance to the actual situation)
  • child support payments: (the amount is calculated in accordance with the gross revenues of the parties)

It is not possible to list all the items that are not legally allowed to be included in the cohabitation agreement but 2 examples are the following:

  • It is not possible to gift something to the other person or each other for the future in an agreement that is not notarized. If the immediate possession of the gifted item by the receiver is possible, that may be included in the cohabitation agreement;
  • There can be no stipulation of the transfer of property to the other or between the couple after the death as such a transfer can be only done via a last will and testament;

All contracts negotiated by and between persons over the age of 18 and apt to conclude agreements are enforceable and the parties must conform to the terms of their agreement.  Regardless of the sincerity and agreement at the time of the conclusion of the cohabitation agreement, the agreement can always be contested by either or both parties before the courts. In the event of a discussion relating to the children, the parties may opt for mediation sessions with an accredited mediator prior to resorting to the courts.

If any further information is required on this subject, please do not hesitate to communicate with our office. 514-499-2010.

Ofelia Lamanna, Attorney

Azran & Associés Avocats Inc.

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