Cohabitation Agreements

Law

People living together may want a contract about what will happen during the time they live together, and what will happen if they later separate. See the sections below to learn about:

  • What a cohabitation agreement is
  • How a cohabitation agreement is different from a pre-nuptial agreement or marriage agreement
  • Who can make a cohabitation agreement, and when you can sign a cohabitation agreement
  • Considering the legal rights and responsibilities of Adult Interdependent Partners when making a cohabitation agreement
  • How to make a cohabitation agreement, and the basics about contract law
  • What happens to a cohabitation agreement if you later get married

Choose the Process tab above for detailed information about the steps involved when making a cohabitation agreement.

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: June 2017
Who is this Information Page for?

This Information Page is for people who are not married but are living together or planning to live together, and want to create a cohabitation agreement. This would set out the terms that will govern their relationship and what would happen if they separated.

This Information Page can help you understand:

  • what must be included in any agreement;
  • what must never be part of any agreement;
  • what can happen if a judge decides there is something wrong with your agreement, or how it was reached; and
  • how knowing your rights can help you make a better agreement.
Be Aware

When writing a cohabitation agreement, you cannot ignore the law. If you include any terms in your agreement that are against the law, those terms will not stand up in court.

This Information Page can apply to both romantic partners and non-romantic relationships.

A cohabitation agreement is not for people who are legally married or plan to be married. In these cases, an agreement to govern your marriage and what would happen if you separated would be either:

  • a pre-nuptial agreement (if you are not yet married); or
  • a marriage agreement (if you are already married).

For more information about pre-nuptial or marriage agreements, see the Pre-nuptial & Marriage Agreements Information Page.

If you are not sure whether you are married or not, see the Getting Married Information Page.

In general, the law and process on this Information Page are for people who live in Alberta. If you think you may move outside of Alberta in the future, see the “Domestic contracts across borders” section of the New Relationships and Out-of-Province Issues Information Page.

There are practical concerns and considerations when you are coming to an agreement on your own. These include negotiation strategies and drafting requirements. For more information, see the Coming to an Agreement on Your Own Information Page.

You do not have to come to an agreement on your own. There are lots of resources available to help you come to an agreement.

If you already have a cohabitation agreement and want to know what happens when your relationship ends, see the Relationship Breakdown if You Had a Domestic Contract Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says about cohabitation agreements. For information on the process you need to follow to create a cohabitation agreement, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

The first topic is What the words mean. Please read this section even if you think you already know what the words mean. In order to understand the resources on this page, you will need to understand the legal terms.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

contract

A formal agreement by two or more people (or groups) to do something, or to not do something. The agreement can be enforced by law if it meets the legal requirements of a contract. For more information, see the “Before you start: Contract law basics” section below.

domestic contract

A legal agreement between 2 or more people who are either:

  • living together (whether married or not);
  • will soon be living together (whether married or not); or
  • were living together (whether married or not) and are now ending their relationship.

A domestic contract allows the parties (romantic or non-romantic) to create their own terms for their relationship. This may include rights and responsibilities they have toward one another during the relationship, as well as after the relationship ends. Or, if they are ending the relationship, it allows them to decide for themselves how to resolve the issues between them. Some examples of domestic contracts are cohabitation agreements, pre-nuptial agreements, marriage agreements, and separation agreements.

binding (to bind)

Creating an obligation or duty that cannot be broken or changed. For example: if people make a “binding” agreement, it means that the parties must follow the terms of the agreement. 

Be Aware

Only those who have signed the binding agreement must follow it. The agreement does not bind anyone else.

take effect

To start to apply. For example: a contract can be signed on March 15, but the terms of the contract may not start to apply until April 1. In this case, the contract “takes effect” on April 1.

spouse

A person who is married to another person.

Be Aware

Some of the resources linked on this Information Page use the term “spouse” to describe both married partners and unmarried partners.

partner

A person who is in a domestic relationship with another person. This term refers to people in romantic relationships, both heterosexual and homosexual, as well as non-romantic domestic relationships

“common-law” partner

In Alberta, the term “common-law” only applies to certain couples and only for certain federal laws (such as the Income Tax Act). Under most federal laws, the term “common-law” refers to a couple who has lived together in a romantic relationship:

  • for at least one year; or
  • for less than one year but they have a child together.

Under Alberta’s provincial laws, there is no such thing as “common-law” partners and “common-law” relationships. In Alberta, similar rights and responsibilities come from being in an “Adult Interdependent Relationship” (see below).

Be Aware

Under the federal Indian Act and the federal Family Homes on Reserves and Matrimonial Interests or Rights Act, the term “common-law” is used only for a couple who has been living together in a romantic relationship for at least one year, whether or not they have had a child together.

Adult Interdependent Relationship (AIR)

The term used in Alberta to describe what many people might think of as a “common-law” relationship.

A person is in an Adult Interdependent Relationship if he or she has been living with and in a “relationship of interdependence” with another person:

  • for 3 years; or
  • for less than 3 years if they have signed an Adult Interdependent Partner Agreement (see below); or
  • for less than 3 years if they have a child together (by birth or adoption).

A “relationship of interdependence” is a relationship where the partners are not married but they:

  • share one another’s lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.
Be Aware

The relationship does not have to be romantic or sexual to meet these requirements; it can be non-romantic (also called “platonic”). For information about non-romantic AIRs, see the Non-romantic Adult Interdependent Relationships Information Page.

Adult Interdependent Partner (AIP)

A person who is in an Adult Interdependent Relationship with another person (see above).

Adult Interdependent Partner Agreement (AIPA)

A written contract in which 2 adults agree to become Adult Interdependent Partners. That contract must be in the form required by the Alberta Adult Interdependent Partner Agreement Regulation—see the following resource.

PDF Adult Interdependent Partner Agreement Regulation
Government of Alberta
English

cohabitation

Living together in the same home.

cohabitation agreement

A contract created by 2 or more people who live together, or are about to live together, but are not married (and not planning on getting married in the near future). In this agreement the parties can address many issues, such as:

  • how bills will be divided between the parties;
  • whether one party will pay partner support to the other if they were to separate; and
  • how property will be divided between the parties if they were to separate.

pre-nuptial agreement

A contract created by 2 people who are planning to get married in the near future. This agreement can include rights and responsibilities they have toward one another during the marriage, as well as after the marriage ends. The parties can address many issues regarding their marriage, such as:

  • how bills will be divided;
  • whether one party will pay spousal support to the other if they were to separate; and
  • how property will be divided between the parties if they were to separate.

marriage agreement

A contract created by 2 people who are already married. This agreement can include rights and responsibilities they have toward one another during the marriage, as well as after the marriage ends. The spouses can address many issues regarding their marriage, such as:

  • how bills will be divided;
  • whether one party will pay spousal support to the other if they were to separate; and
  • how property will be divided between the spouses if they were to separate.
Be Aware

Some of the resources linked on this Information Page use the term “marriage agreement” to describe any agreement that governs a marriage—regardless of whether the agreement is signed before or after two people get married.

independent legal advice

Guidance from a lawyer about a contract a person wants to sign before they sign the contract. The lawyer makes sure that the person understands the law and legal consequences of the contract, including the person’s rights and responsibilities. In order for the advice to be “independent,” both you and the other party must have your own lawyer. You cannot both go to the same law firm.

negotiation

Any process where there is a “discussion” to resolve a disagreement or conflict, and the people involved try to come to an agreement. This is different from simply “presenting sides” and having someone else make a decision for you.

“best interests of the child”

The factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child.

For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • for older children, the wishes of the child.

party

Any person involved in a dispute. It can also refer to each of the people who sign a contract.

“set aside” an agreement

When a court “sets aside” an agreement, it believes that making one of the parties carry out his or her “end of the deal” would not be right. Another way of saying “setting aside” is “striking down.”

An agreement can be set aside for many reasons, such as:

  • one party was pressured, forced, or tricked into signing the agreement (this may also be called “undue influence”);
  • one party did not have the “capacity” to enter into the agreement (that is, they did not have the legal ability to understand the agreement);
  • the parties involved in the agreement did not give each other full and accurate information (that is, they did not provide each other with complete “disclosure”); or
  • any of the parties did not understand what they were signing.

By setting an agreement aside, a court is basically cancelling it. A court can set aside:

  • the whole agreement;
  • just a particular part; or
  • several parts of the agreement.

financial disclosure

The process of giving your financial information to someone else. This information usually includes such things as:

  • tax returns
  • income information (such as pay stubs)
  • a list of property you own (including the current value)
  • statements about investments you have (including the current value)

Depending on the situation, it may include much more information.

When separating or divorcing, parties give each other this information so that fair solutions can be reached. If you are going to court about child support, spousal/partner support, or division of property, this information will be required by the court.

capacity

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are 2 parts to mental capacity:

  1. the ability to understand the nature of a decision (including understanding all of the information that is relevant to a particular decision); and
  2. the ability to understand the consequences of making a decision (that is, a person with capacity would understand what could happen as a result of making a certain decision).

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor’s opinion or a judge’s decision).

consent

To give permission for something to happen, or to agree to do something. Only people with capacity can consent.

clause

The term “clause” usually means a sentence or phrase in a written agreement or court order that has some particular meaning or function.

For example, a “severability clause” in an agreement is a sentence that says everything in the agreement is separate from one another. This means that if a part of the agreement is not enforceable under the law, it will not affect the rest of the agreement. So every time someone uses the term “severability clause,” it means a sentence that has this particular function (although the wording of the clause may be different in each agreement or order).

“waive” something

The act of voluntarily giving up a right or privilege. For example: if someone waives their right to partner support, that means they are choosing to give up the right to make a claim for partner support.

waiver

A document or part of a document that records the waiving of someone’s right or privilege. For example: when you waive your right to partner support and you want to put it in writing, the document you sign is called a "partner support waiver."

“contract out of”

Agreeing in a contract to not be included in something.

For example: the law often sets “standard” rights and responsibilities. The terms of a contract can sometimes change some of these rights and responsibilities. In other words, you can contract out of those rights and responsibilities.

Be Aware

There are limits to the legal rights and responsibilities you can contract out of. These are discussed on this Information Page.

enforcement

Forcing something to be done or forcing someone to act in a specific way because of a law, rule, or court order.

The laws that may apply to you

A cohabitation agreement is signed at a time where the parties are not facing separation. However, the parties may want to consider the laws that would apply if they were to separate in the future. Much of the goal of having a domestic contract is to figure out what will happen if the parties separate. 

As you work through your legal questions, you may wish to read the laws (also called “statutes” or “acts”) that apply to your situation. The laws included on this Information Page are:

Web Family Law Act (and associated Regulations)
Government of Alberta
English

When reading laws, you also need to know about the “regulations” associated with those laws. Each of the links above takes you to a page that lists the laws as well as the regulations that go with them. For more information on laws and regulations, see the Our Legal System Information Page.

For more information about the laws that govern unmarried partners and what your relationship “status” is under the law, see the following Information Pages.

What is a cohabitation agreement?

A cohabitation agreement is a domestic contract created by 2 or more people who live together, or are about to live together, but are not married (and not planning on getting married in the near future). In this agreement, the parties can set out the terms that will govern:

  • important issues during their relationship; and
  • what will happen if they later separate.

A cohabitation agreement is often made between romantic partners, but people in non-romantic relationships can have one as well.

In Alberta, there is no general requirement that the content of a cohabitation agreement has to meet everyone’s personal definition of “fair.” However, the legal requirements of a contract must be met. Also, the parties must understand their rights and what they are signing. See the section below called “Before you start: Contract law basics” for details about the legal requirements of contracts.

A cohabitation agreement is a good way for the parties to set their own “rules” for their relationship. The parties involved are largely free to contract as they wish. However, the law still applies. Your cohabitation agreement must follow the law.

For more general information about cohabitation agreements and other domestic contracts, see the following resources.


Web Family Law Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more here.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

PDF Living Together or Living Apart
Legal Services Society
Chinese, English, French, Punjabi, Spanish
This resource is from outside Alberta. Learn more here. See p. 5-9.

Web Making an agreement when you live together
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Web What are domestic contracts?
Luke's Place
English
This resource is from outside Alberta. Learn more here.

PDF Fiche d'information sur les contrats familiaux
Luke's Place
French
This resource is from outside Alberta. Learn more here.

Web Family Law Education for Women
Metropolitan Action Committee on Violence Against Women and Children
Arabic, Chinese, English, Farsi, French, Korean, Punjabi, Russian, Somali, Spanish, Tamil, Urdu
This resource is from outside Alberta. Learn more here. Choose your language, then see topic #6.

PDF Domestic Contracts (for Muslim Women)
Canadian Council of Muslim Women
English
This resource is from outside Alberta. Learn more here.

PDF Domestic Contracts: Muslim & Canadian Family Laws
Canadian Council of Muslim Women
English
This resource is from outside Alberta. Learn more here.


The following resources are not available online. The links below will give you an overview of the resources, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.
Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 15.

Book The Domestic Contract – Which is Which and When to Use It (article included in "Domestic Contracts")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Who can make a cohabitation agreement?

Cohabitation agreements are commonly used by people who are living together (or plan to live together) in a romantic relationship. They can be used by:

  • couples who are not yet considered “common-law” for federal purposes;
  • couples who are “common-law” partners but not yet Adult Interdependent Partners under Alberta law; or
  • those who are Adult Interdependent Partners under Alberta law.

For more information about all of these various legal stages, see the “What the words mean” section above, the Living Together: Common Law Partnerships & Adult Interdependent Relationships Information Page, and the following resources.


Web Adult Interdependent Relationships FAQs
Centre for Public Legal Education Alberta
English

PDF Living Together: Adult Interdependent Relationships
Centre for Public Legal Education Alberta
English

Cohabitation agreements can also be used by non-romantic partners who are living together (or plan to live together). As long as you live together (or are about to live together), you can enter into a cohabitation agreement. Keep in mind that 2 people who live together in a non-romantic “relationship of interdependence” can also form an Adult Interdependent Relationship (AIR). Specifically, if you are not related by blood or adoption, after 3 years of cohabitation the law will automatically see you as Adult Interdependent Partners (AIPs). This is true even if your arrangement is only for the sake of convenience. If you are related by blood or adoption, the only way you can become AIPs is by signing an Adult Interdependent Partnership Agreement (AIPA). For information about non-romantic AIRs, see the Non-romantic Adult Interdependent Relationships Information Page.

Lastly, cohabitation agreements can be made between people who live together but have no real ties to one another. These are simply called “roommate agreements.” This type of cohabitation agreement will often have terms like:

  • how rent and bills will be paid;
  • who will do what chores; and
  • what kind of activities are forbidden.

For more information about this type of arrangement, see the Just Sharing Space Information Page.

The kind of relationship that you are in will determine the rights that you may or may not have if the relationship breaks down. For example, you have different rights if you are just living together than if you are in an Adult Interdependent Relationship. Signing a cohabitation agreement can affect these rights:

  • The agreement may create rights and responsibilities that otherwise would not exist.
  • On the other hand, the agreement may take away rights and responsibilities that you would normally have.

To learn more about what law would govern a breakdown of your relationship if you do not have a cohabitation agreement, see the Information Page that applies to you:

Adult Interdependent Relationships (AIRs) and how they affect cohabitation agreements

The law governing unmarried partners (both romantic and non-romantic) can be complicated. It is important to know about:

  • the different types of relationships recognized by the law;
  • which kind of relationship you are in (or may be in at some point in the future); and
  • the different types of agreements that may be relevant to you.

What exactly is an Adult Interdependent Relationship?

“Adult Interdependent Partner” (AIP) is the term used in Alberta to describe what many people might think of as a “common-law” partner. However, they are not the same thing

Under federal law, you become “common-law partners” (also called “unmarried spouses”) after one year of living together in a romantic (or “conjugal”) relationship. As a result, for federal purposes (such as filing taxes), your “marital status” becomes “common-law.” This happens no matter where you live in Canada. You also become common-law partners when you have a child together, even if you haven’t been living together for a year yet. Having a child together includes adopting a child together.

Adult Interdependent Relationships (AIRs), unlike federal “common-law” relationships or other provinces’ laws about living together, can occur in non-romantic (in other words, non-conjugal) situations. Also, you do not become AIPs after just living together for one year.

To be in an AIR, you must have been living with and in a relationship of interdependence with another person:

  • for 3 years; or
  • for less than 3 years if you have signed an Adult Interdependent Partner Agreement; or
  • for less than 3 years if you have a child together (by birth or adoption).

A “relationship of interdependence” is a relationship where the partners are not married but they:

  • share one another’s lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.
Be Aware

You cannot become the Adult Interdependent Partner of someone you are related to by blood or adoption, unless you sign an Adult Interdependent Partner Agreement with them.

In other words:

  • If you live together for 3 years (without having or adopting a child or signing an Adult Interdependent Partner Agreement), you will be in an AIR when you reach the third anniversary of moving in together. This is true whether you want to be in one or not.
  • If you have or adopt a child together, you automatically become Adult Interdependent Partners upon the birth or formal adoption. It does not matter how long you have lived together.
  • If you sign an Adult Interdependent Partner Agreement (AIPA), you become Adult Interdependent Partners as soon as it is completely signed and witnessed. It does not matter how long you have lived together. However, you cannot sign an AIPA if you are a minor, unless you are 16 or over and have your guardians’ consent.

As you can see from the definition of “relationship of interdependence,” the relationship does not have to be romantic or sexual to meet these requirements. It can be non-romantic (also called “platonic”).

Becoming AIPs means that the partners each have certain legal rights and responsibilities. Once you are an AIP, you have these rights and responsibilities, whether or not you wanted to.

If you wish to “contract out” of these rights and responsibilities, you might be able to do so by signing a valid cohabitation agreement.

Be Aware

This may be especially relevant for seniors who live together for companionship (whether romantic or not). You may not wish to create other rights and obligations that could affect the rights of your children from your previous relationships upon your death.

For more information about rights and responsibilities in Adult Interdependent Relationships, see either the Living Together: Common Law Partnerships & Adult Interdependent Relationships Information Page or the Non-romantic Adult Interdependent Relationships Information Page, and the following resources.


Web Adult Interdependent Relationships FAQs
Centre for Public Legal Education Alberta
English

PDF Living Together: Adult Interdependent Relationships
Centre for Public Legal Education Alberta
English

What is the difference between a cohabitation agreement and an Adult Interdependent Partner Agreement?

Adult Interdependent Partner Agreement (AIPA)

An Adult Interdependent Partner Agreement (AIPA) is a written and signed contract in which 2 parties agree to become each other’s Adult Interdependent Partner (AIP). It must be in the form required by the Alberta Adult Interdependent Partner Agreement Regulation.

Being an AIP gives you rights and responsibilities under the Adult Interdependent Relationships Act (AIRA). For example, if the relationship breaks down, you may be entitled to:

  • partner support;
  • exclusive possession of the home; and
  • pension claims.

In some situations, AIPs have similar rights and responsibilities as married couples. By signing an AIPA, you are saying that:

  • you and the other party are not married, BUT
  • you are in a relationship of interdependence, and
  • you want that to be fully recognized under the law.

For example:

  • A couple has been dating for a few years.
  • The couple decides to move in together.
  • Under the law, they are not yet AIPs. They would only become AIPs after living together for 3 years or having a child together.
  • However, the couple want the rights and responsibilities of being AIPs.
  • They decide to sign an AIPA.
  • They sign the AIPA after living together for 2 months.
  • They are now AIPs, and are subject to all the rights and responsibilities of an AIR.

For more about AIRs, becoming AIPs, and the rights and responsibilities of AIPs, as well as detailed information on how to complete an AIPA, see the Living Together: Common Law Partnerships & Adult Interdependent Relationships Information Page and the following resources.

PDF Living Together: Adult Interdependent Relationships
Centre for Public Legal Education Alberta
English

PDF Adult Interdependent Relationships
Government of Alberta
English


Web Adult Interdependent Relationships FAQs
Centre for Public Legal Education Alberta
English

Audio/Web Cohabiting Relationships and Adult Interdependent Partners
Calgary Legal Guidance
English

Web The Adult Interdependent Relationships Act
Centre for Public Legal Education Alberta
English

PDF Cohabitation Agreements
Liddell Law Office
English
This is a private source. Learn more here.

Video Mariage et relation adulte interdépendante
L'Association des juristes d'expression française de l'Alberta
French

PDF La vie de couple en Alberta
L'Association des juristes d'expression française de l'Alberta
French
  

Cohabitation agreements

A cohabitation agreement is different. A cohabitation agreement allows the parties to set their own “rules” about how they want to live together as well as what rights and responsibilities each will have if they later separate.

Signing an AIPA immediately changes your relationship status under the law. It means that you accept the rights and responsibilities of Adult Interdependent Partners laid out in the Adult Interdependent Relationships Act.

On the other hand, signing a cohabitation agreement does not change your relationship status under the law—you are just making your own “rules” about your relationship.

For example:

  • You and your partner have been dating for 2 years and you decide to move in together.
  • If, one week later, you and your partner sign an AIPA, you immediately become AIPs. This is true whether or not you have a cohabitation agreement.
  • On the other hand, at that one-week point, if you and your partner only sign a cohabitation agreement, you are not AIPs. You would only become AIPs by one of the usual 3 ways (whichever comes first). You could sign an AIPA later. You could just live together for another 2 years and 51 weeks. Or you could have a child together.
Be Aware

AIPAs and cohabitation agreements are 2 separate documents. AIPAs require a very specific form, which is set out in the Adult Interdependent Partner Agreement Regulation. You cannot just add a clause to your cohabitation agreement to become AIPs. For more information about signing an AIPA, see the Living Together: Common Law Partnerships and Adult Interdependent Relationships Information Page.

How cohabitation agreements and AIR status relate to each other

First, remember that signing an AIPA is not the only way to become AIPs. You and your partner will become AIPs if you meet the requirements of an Adult Interdependent Relationship (AIR) described above. Being AIPs means that you automatically have the rights and responsibilities laid out in the Adult Interdependent Relationships Act.

By signing a cohabitation agreement, you can change some or all of those rights and responsibilities given by the law. This is sometimes called “contracting out” of the rights and responsibilities of an AIR.

However, once you become AIPs, any topic that was not dealt with in the cohabitation agreement will still be governed by the Adult Interdependent Relationships Act (AIRA). If you are not able to resolve an issue about that topic, a court will use the rules in the AIRA to resolve that issue.

For example:

  • You move in with your partner and sign a cohabitation agreement that only deals with issues about your property.
  • You live together for 6 years in a “relationship of interdependence” and then separate.
  • One AIP may be able to ask for partner support from the other AIP. This is because partner support is one of the rights included in the Adult Interdependent Relationships Act (AIRA) and your cohabitation agreement did not deal with that topic.

Similarly, if your cohabitation agreement—or part of it—is set aside, a court will treat you as AIPs in order to resolve any outstanding issues. For more information about what might cause an agreement to be set aside, see the “What the words mean” section above.

When can we make a cohabitation agreement?

Many people think that a cohabitation agreement can only be signed at the start of the relationship, or right when the parties are moving in together. This is incorrect.

A cohabitation agreement can be signed before or after you and the other party move in together. Don’t let the amount of time you have lived with or been in a relationship with another person keep you from getting a cohabitation agreement. You can make a cohabitation agreement at any time during your relationship or cohabitation.

Why sign a cohabitation agreement?

There are many reasons people choose to enter into a cohabitation agreement. Some of the common reasons are described below.

Not all relationships last forever

Right now, you may be in a stable and healthy relationship and you can’t see things ever going wrong. In fact, about half of all marriages end in divorce. The rate of separation for unmarried couples is even higher. It may be worthwhile to be cautious. A cohabitation agreement between you and your partner can protect your interests.

Avoid future conflict

Having a cohabitation agreement that deals with what will happen if you separate could help reduce or avoid future conflicts. The decisions will have already been made. At the moment, you still like each other. It is often much easier to come to an agreement now than it will be if you split up and no longer get along. Preparing the agreement is also a good opportunity for each of you to see what the other expects from the relationship.

Protect yourself against uncertainty (as much as possible)

When unmarried couples separate, neither the Divorce Act nor the Matrimonial Property Act will apply. Instead:

  • If the parties are Adult Interdependent Partners (AIPs), they will have some protection under the Family Law Act when they separate.
  • If the parties are not AIPs, there is very little law that governs their relationship, or the breakdown of their relationship.

In a cohabitation agreement, you can make some of your own rules in case you were to separate. You can settle many (but not all) of your legal rights and responsibilities ahead of time. Protecting yourself against uncertainty may be especially important if you have:

  • children from a previous relationship; or
  • property that you wish to protect.

More information

For more information about why a cohabitation agreement might be a good idea, see the following resources.

Web Cohabitation Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more here. See “Deciding whether a cohabitation agreement is appropriate.” Note: this website deals with the law in British Columbia. The Family Law Act in BC is not the same as the Family Law Act in Alberta. Do not follow the legal requirements stated on this website; simply use the considerations for whether a cohabitation agreement is appropriate for guidance.

Web Talk to your partner and make your own agreement
National Association of Women and the Law
English
This resource is from outside Alberta. Learn more here.

Web Legal matters and finances for couples
Government of Canada
English

Web Questions juridiques pour les couples
Government of Canada
French

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

Web What are domestic contracts?
Luke's Place
English
This resource is from outside Alberta. Learn more here.

PDF Fiche d'information sur les contrats familiaux
Luke's Place
French
This resource is from outside Alberta. Learn more here.

Web “Pre-nups”, Cohabitation Agreements and Marriage Contracts
Patriot Law Group
English
This resource is from outside Alberta. Learn more here.

Web Common-Law Relationships and Cohabitation Agreements
Kobewka Stark
English
This is a private source. Learn more here.

Web We're not married -- do we need a cohabitation agreement?
Huffington Post Canada
English
This is a private source from outside Alberta. Learn more here.
What happens if you separate and you don’t have a cohabitation agreement

You and your partner may have lived together for some time without a cohabitation agreement. Now you have decided to separate. In this case, you may have certain rights under the law.

  • If you are Adult Interdependent Partners (AIPs), you will have protection under the Family Law Act.
  • If you are not AIPs, then there is no law that specifically applies to you. The “common law” will apply instead.

The “common law” is a set of rules that is created by court decisions over time. It addresses issues when no written law (a “statute”) about a certain topic has been passed by the government. For more detailed information about common law, including who creates it, how it is enforced, and more examples, see the Our Legal System Information Page.

This makes it especially important to learn the law before entering into a cohabitation agreement. Otherwise, your agreement may leave you in a worse situation than if you didn’t have one.

For more information about what happens when unmarried partners separate without a cohabitation agreement, see the following Information Pages.

Tip

Not all rights and responsibilities can be “contracted out of” in a cohabitation agreement. For example: a clause that says that no child support will be paid will not be upheld. This is because as child support is the right of the child, not the parents.

Before you start: Know your rights

Sometimes, people think (or are told) that learning about their legal rights and options is a bad thing. They believe that this might lead them to fight and “go to court” one day. This is not true. Writing your own cohabitation agreement does not mean that you can ignore the law.

Understanding your rights under the law may help you:

  • make informed decisions about the terms of the agreement; and
  • realize what you may be giving up by signing the agreement.

Sometimes people only find out afterward what their rights and options were under the law. This can lead to resentment and attempts at “undoing” the terms of the agreement. Sometimes one or more of the parties does not understand their rights when they make an agreement. In this case, the agreement could be “set aside” or “struck down” by a court.

Thus, any agreement will have more of a chance of success if everyone involved:

  • knows their rights and options; and
  • makes all of their choices with these rights and options in mind.

Also, under the law, there are things you cannot do in a cohabitation agreement. For example, child support is the right of the child, not the parents. You cannot contract out of child support entirely in a cohabitation agreement. This will not be allowed by the Court if you and your partner later separate. You would have spent time and money creating an agreement that may not be allowed under the law. It is better to know the law from the beginning. This way, you can make sure that whatever you put in your cohabitation agreement will be enforceable.

Learn the relevant law

You will want to learn about the goal and process of creating a cohabitation agreement, as well as the relevant laws. This is true whether you are hiring a lawyer to draft a cohabitation agreement or doing it yourself. Take the time to learn about the legal topics that may come up if you separate from your partner. It is difficult to foresee your circumstances in the future. However, it is very important to know your rights under the law before entering into any contracts.

This will take some time—law is not easy. Do not try to do it all in one sitting. See the Information Pages below about common legal issues that come up when partners separate.

Be Aware

The Divorce Act and the Matrimonial Property Act would not apply to you if your relationship later breaks down. You will not need to read about those laws unless you later marry.

For a complete list of other Information Pages about family legal issues, you can browse the Family Law Topics or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Before you start: Contract law basics

To make an agreement (also called a “contract”) that is legally sound, there are some very important things that you must know. The rest of this section has information about:

  • What is a contract?
  • Void and voidable contracts
  • Things you must always have in any agreement
  • Things that are always a good idea to have in any agreement
  • Things you cannot ever have in any agreement
  • Legal details

See the following resources for an overview of these issues. Note that these resources are from outside Alberta. Learn more here.


Web Basic Rules of Contracts
Éducaloi
English

Web Making a Contract
Clicklaw
English

Web Making a Contract
People's Law School
English

Web How to Write a Legal Contract
People's Law School
English

What is a contract?

A contract is an agreementy between 2 or more people that can be enforced by the courts. The people who take part in this agreement are called “parties.” A contract is different from a casual agreement or promise. With a contract, if one party does not hold up “their end of the deal,” they can be sued by the other party in court. As long as a contract is valid, the parties have legal protection. The rest of this section describes what makes a contract “valid.”

The purpose of having a contract is to settle the parties’ rights and obligations in a certain way. Then the parties don’t have to worry about what might happen in the future. Once a valid contract has been created, it cannot be changed unless all the parties to the contract agree to the change.

For more information, see the following resource.

Presentation Canadian Law: Elements of a Contract
Northlands Parkway Collegiate
English

Void and voidable contracts

A contract can be “void” or “voidable” if:

  • it does not have all the necessary legal requirements; or
  • the process of creating the contract was unfair or has some other flaws.

A void contract is a contract that was never legal, such as a contract to do an impossible or illegal act. Because the contract was never legal, it “never existed” under the law. If a contract is void, you will not be able to enforce it in court.

A voidable contract, on the other hand, is a contract with a legal flaw. However, the contract is still recognized as a valid contract until:

  • someone brings that flaw to the attention of a court; and
  • the court decides that the contract was not valid after all. This decision makes it a void contract.

The main difference between a void contract and a voidable contract is whether it can be used at all.

  • A void contract cannot be carried out under the law.
  • A voidable contract can be carried out unless one of the parties disputes the contract.

For example:

  • A contract that was signed by an adult with a severe head injury who has lost the capacity to make their own decisions is void.
  • A contract that was signed by a 17-year-old a few days before their 18th birthday is voidable.

For examples of legal flaws that can make a contract void or voidable, see the following resource and the rest of this section.

Web What Are the Differences Between a Void Contract and a Voidable Contract?
LegalMatch
English
This resource is from a private source outside Alberta. Learn more here.

Things you must always have in any agreement

For any kind of agreement to be legally sound, there are several things that are required. They include:

  • Capacity
  • Consent
  • Complete disclosure
  • Following the law that governs the issue

Capacity

“Capacity” means the parties who make the agreement must have the legal authority to make decisions for themselves.

This means that a person signing an agreement must understand both:

  • what they are agreeing to (everything in it!); and
  • what could happen if they do or do not sign the agreement.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

When making an agreement, you need to be sure that all the parties involved have capacity both:

  • while making the decisions; and
  • when they sign the agreement.

For more general information about capacity, see the following resources.


Web Understanding Legal Capacity In Alberta
Kahane Law Office
English
This is a private source. Learn more here.

Video Understanding Legal (Mental) Capacity
Kahane Law Office (via YouTube)
English
This is a private source. Learn more here.
 

A person under the age of 18 (a “minor”) is generally presumed to not have capacity to enter into contracts. Any contract that is not in a minor’s best interest is void. Contracts that are not harmful to a minor are voidable unless:

  • the contract was for the “necessaries of life” (for example: food and shelter); or
  • the minor has already benefitted from the contract.

Therefore, if a minor enters into an agreement, that agreement will generally be voidable. This is true even if both parties carried out the contract and treated it as valid.

An agreement made by an adult without capacity would be void. However, there could be disagreement about the capacity of the adult. Then, a court may have to hear the evidence of incapacity and make a decision about whether to set aside the contract.
 

Consent

Entering into an agreement must be voluntary. No one should ever be forced or tricked into signing a contract. If it is shown that a person did not properly consent to the agreement, a court can cancel the agreement. This is also called “setting aside” the agreement.

Legally, a person under the age of 18 (a “minor”) cannot give consent. This means that if a minor agrees to something, you may not be able to “hold” them to it. This is why a contract entered into by a minor is voidable. See the “Void and voidable contracts” heading above.
 

Complete disclosure

“Complete disclosure” means that all parties involved in the agreement must give each other full and accurate information. This includes financial information. Each of you needs to know all of the information to decide whether a deal is fair. This is the purpose of complete disclosure.

The parties cannot lie about the facts on which the agreement is based. Lying includes leaving out (omitting) important information. Fair and lasting agreements are based on being honest. If it is later shown that someone lied, or one party misled the other about relevant information, the agreement can be set aside. A full and thorough disclosure is the best way to prevent your cohabitation agreement from being set aside.
 

Following the law that governs the issue

Different laws can do different things.

  • Some laws state what must always be the case.
  • Some laws state what the “default” is. In other words, they say what would happen if there were no agreement. The parties can “agree otherwise” or “contract out” of the default position.

You must be sure that your agreement follows the laws that dictate what must always be.

For example:

  • The law states that when parents separate, their children are entitled to support.
  • The law also sets a certain amount of support to be paid. This is called the “table” amount.
  • You cannot just contract out of this. In other words, you cannot make a cohabitation agreement that says neither party will ever have to pay child support to the other.
  • The only time you may be able to pay less than the table amount is if there are unusual circumstances. These circumstances would have to be proven to the Court.

When you are making an agreement, you must know what laws govern your issues. Two family law examples are:

  • A cohabitation agreement that deals with child support must provide enough support for the children. If it does not, it may be set aside by the Court.
  • A cohabitation agreement that deals with parenting arrangements (such as guardianship, contact with the child, or parenting time) must be in the child’s best interests. However, those arrangements do not have to be followed when the parents separate. At separation, the Court can always look at, and decide, the “best interests” of the child. It can set aside any agreement it feels is not in the best interests of the child.

When making a domestic contract, remember that the laws that govern family issues are different in every province.

Example #1

In Ontario, the law is clear that issues such as where the children will live can only be decided if and when you separate. Parties cannot address these issues in a cohabitation or pre-nuptial agreement, since they are still together. If you think that you might move to another province, you may wish to look at the laws for that province before coming to an agreement. You will want to ensure that your agreement will be valid in that province. One way of having some certainty is to have a “law that governs” clause. This clause will lay out which province’s or country’s laws will decide any future issues that might come up.

Example #2

There are differences between the provinces when dealing with fairness and unconscionability. “Unconscionability” is a term used to describe situations of extreme unfairness. In other words, it would be against our conscience to let this thing happen. Fairness and unconscionability have not yet been factors to overturn a domestic contract in Alberta. However, they may become relevant in the future.

  • In Alberta, an agreement will generally be upheld in court as long as the following 3 things are in place. First, the parties to the contract are fully informed of their legal rights. Second, they each get full disclosure about the other party’s assets. Third, they each get independent legal advice.
  • But this isn’t the case in British Columbia. In British Columbia, the Court has struck down family law agreements because the agreement was too unfair.
Remember

The laws and court decisions are different in different provinces. If you think you may move to another province, consider looking at the laws of that province. That way, you can plan for your agreement to be valid in that province.

The Solving Legal Problems & Out-of-Province Issues Information Page can be helpful if:

  • you think you might be moving to a different province in the future; or
  • you are moving from a different province to Alberta.
Tip

Many of the Information Pages on LegalAve have a section called “The laws that may apply to you.” If you are not sure what laws govern your legal issues, that is a good place to start. To find Information Pages about your issue, you can browse the Family Law Topics or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Things that are always a good idea to have in any agreement

The following things do not have to be part of most agreements. But, having them might make it easier to enforce your agreement in the future.

Independent legal advice

This means that you consult with a lawyer about a contract you want to sign before signing the contract. The lawyer makes sure that you understand:

  • the law that applies to the contract;
  • your rights and responsibilities under the contract; and
  • possible legal consequences of the contract. In other words, what could happen as a result of signing the contract.

For the advice to be “independent,” both you and the other party must have your own lawyer. You cannot both go to the same law firm.

Without getting independent legal advice, the parties may not truly understand the contract when they sign it. As a result, a court may decide to “set aside” the agreement.

For more information, see the “Getting independent legal advice” section below.

A written agreement

In theory, a verbal contract can be legally enforceable. However, it is always better to put any agreements in writing, whether typed or handwritten. This is because, when the agreement is not in writing, it can be impossible to prove exactly what was agreed to. The other party can just say, “I didn’t say that.”

Also, with a verbal agreement, both you and the other party may have different understandings of what the verbal agreement means. The other party can just say, “That’s not what I meant.” If the agreement is written down clearly, it can prevent misunderstandings in the future.

For more information, see the following resources.

Web Is a Verbal Marriage Contract Only Worth the Paper It’s Written On?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Web Can You Have a Verbal Marriage Contract that is Worth Anything?
Barriston Law LLP
English
This resource is from a private source outside Alberta. Learn more here.
 

Witnesses

It is a good idea to each have a witness to your signature when you sign your agreement. Your witness watches you sign the agreement, and then they sign the agreement to “prove” that they watched you sign. In the future, someone may question whether you freely consented to the agreement. Having a witness who watched you sign the agreement may help your case.

The witnesses do not have to read the agreement. In Alberta, a witness can be anyone who is over the age of 18 and who does not stand to benefit from the agreement.

Clarity

Make sure it is very clear what you are agreeing to. You don’t want to argue later about what you really meant. Also, there is no need for complicated legal phrasing. Plain, clear language works best. You may want to have a friend read the document to see if they can understand it without any help from you.

Things you cannot ever have in any agreement

To make sure that your agreement is legally sound, there are several things that must never be present. They include the following.

Undue influence

“Undue influence” takes place when one person has power over another person, and uses that power to benefit himself or herself in the agreement. Undue influence affects the free will and judgment of another person, and may include:

  • advice;
  • persuasion;
  • suggestions;
  • flattery; and
  • lying or hiding the truth.

If a judge finds that there was undue influence when the agreement was made, the agreement can be set aside.

Duress

“Duress” means that one person directly or indirectly threatened the other.

A direct threat is usually very clear. For example: “Sign this or I will make you pay” or a hand gesture that shows throat-cutting.

An indirect threat is less clear, and may only be understood as a threat by the people involved. For example: “Have a safe ride home.” Such a statement does not, on its own, look very threatening. However, it could be threatening in some circumstances. Maybe the person who is speaking had previously threatened to disable part of the other person’s car. Or, maybe statement was combined with a threatening expression or eye contact that only the person involved would see.

If a judge finds that a party was under duress when the agreement was made, the agreement can be set aside.

For more information, see the following resources.

Web What are domestic contracts?
Luke's Place
English
This resource is from outside Alberta. Learn more here.

PDF Fiche d'information sur les contrats familiaux
Luke's Place
French
This resource is from outside Alberta. Learn more here.

Web Was Your Marriage Contract Signed “Under Duress”?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.
  

Terms that are against the law or against “public policy”

You cannot agree to anything that is against the law or “public policy.”

Something that is against the law is easy to understand. For example: a court will not uphold an agreement that says that no child support would be paid by either party. This is because the law requires parents to support their children. Also, child support is the right of the child, not the parents.

Something is that is against public policy is different. It may not actually “break” any laws, but it does not follow the spirit and purpose of the law. Or it may not fit with the general social and moral values of our society.

Some conditions in your cohabitation agreement may be set aside if they are against public policy. For example, you might try to set a condition on paying partner support. The condition says that that your partner can not enter into another romantic relationship for 15 years following your separation. This condition would be struck down in court as against “public policy.” This can apply to any situation where one party holds the other party “hostage” with a condition that is not generally acceptable in our society.

Legal details

Contracts can vary in length, style, and content. However, including certain details, or “legal technicalities,” can help you avoid potential problems with enforcing the contract in the future.

Here are some of the most important “legal technicalities” you may want to include in your agreement:

  • the exact names of all of the parties, and the names and birth dates of all the children involved, if there are any.
  • the date the agreement takes effect: agreements are binding from the moment they are signed by all parties, unless the agreement says something different.
  • recitals: these are sometimes called “whereas” clauses. They give a clear statement about what the contract is intended to govern, as well as some background information. For example: “This agreement is intended to govern property division upon separation.”
  • mutual releases, if you decide you want them. This is where the parties limit their claims against each other to what is included in the agreement. In other words, they cannot later ask for more than was agreed to in the agreement.
  • acknowledgements: this is where the parties state that they met the legal requirements. For example: Each party read and fully understands the agreement. Each party is voluntarily signing the agreement. Each party has received independent legal advice. Or, if legal advice is not required for the agreement, each party knows that they can get legal advice but is choosing not to get such advice.
  • a “law that governs” clause: this clause will lay out which province’s or country’s laws will be used to decide any future issues that might come up. This can be important if one of the parties lives in, or will move to, another province or country.
  • a severability clause: this clause states that each term of a contract is independent from the other terms of the contract. This way, if part of a contract is struck down in court, the rest of the contract would still be valid.

More information

For more information about how contracts work, see the following resource.

PDF Contract Law in Alberta
Centre for Public Legal Education Alberta
English
This resource is intended for teaching young students about consumer contracts, but much of the information applies to domestic contracts as well.
 

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Can You Bullet Proof a Settlement Agreement? (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Common topics to include in a cohabitation agreement

Every relationship is unique. Therefore, what is included in a cohabitation agreement will depend on the people involved and their particular situation.

Although you can technically put almost anything in a cohabitation agreement, some things won’t be “binding.” This means that although the parties may have agreed on a matter, the Court will have the final say. If the Court is not satisfied with the terms of the agreement on certain matters, it has the power to change it. Keep reading this section for more information about what may or may not be “binding” in a cohabitation agreement.

Tip

A cohabitation agreement, like any other contract, has legal force. This means that the other party can take you to court if you don’t hold up “your end of the deal.” So, make sure you only agree to terms that you are comfortable with. Don’t agree to something just to make the other party happy.

Issues during the relationship

A cohabitation agreement can have terms that deal with rights and responsibilities of the parties during the relationship. For example: who pays the electricity bill and who buys the groceries.

However, terms like these are often difficult to enforce. For example, you and your partner can agree to each pay for half of the electricity bill each month in your cohabitation agreement. But what happens if one of you loses your job? It may be hard to account for all of the possible circumstances that could arise in your daily lives.

Separation issues

In many relationships, the main goal of creating a cohabitation agreement is to give the parties some certainty about what will happen if the relationship ends. Issues related to separation can generally be divided into 3 categories:

  1. issues relating to children;
  2. partner support; and
  3. property division.

Property division is usually the easiest to deal with in a cohabitation agreement. This is because because you know what property you own when you sign the agreement. You can then decide how you want to divide the property and debt you get during the relationship. It is harder to deal with unknown circumstances in the future that will affect partner support and issues concerning children.

Issues relating to children

You may not be thinking about it right now, but you may one day decide to have children. Or perhaps you already have children from either your current relationship or previous relationships. One rule guides all arrangements made for children. Any decision regarding your children (such as guardianship, contact with the child, and child support) must be made in their best interest.

Also, when dealing with issues about children, a court can always have the final say. It does not matter what the parties involved have agreed upon. This power of the court comes from a legal concept called the “parens patriae” jurisdiction. This Latin term means “parent of the nation.” It refers to the power of the court to:

  • step between a parent or guardian and their child; and
  • act as the parent of any child in need of aid or protection.

In making decisions that will affect a child, the Court will only consider what is in the “best interests of the child.” So, it does not matter what the parents have agreed to in their cohabitation agreement about their children. The Court can change the arrangement if it believes that the arrangement is not in the best interests of the children.

Typically, this is only an issue when parents try to contract out of the minimum requirements of the law. For example, if you agreed that neither party will pay child support to the other party if you were to separate, the Court will not accept this arrangement. This is because it is not in the best interests of the child to not receive child support. Also, child support is the right of the child, not the parents. But it would be different if you and the other party agreed on an amount of child support that is higher than what the law requires. Then the Court is likely to uphold the arrangement if you are ever in court.

Basically, you can make arrangements for your children in a cohabitation agreement, but those agreements will never really be binding. Because of this, you may want to make it clear what you intend, and why. For example, you may say that you intend for the mother of the children to make all of their health care decisions. You want this because she is a doctor. This may be a factor the Court will consider if you separate and go to court.

Be Aware

Not all provinces allow parents to include child-related issues in a domestic contract. For example, in Ontario, parents can only enter into an agreement about parenting time, custody, or access after they have separated. If you think that you might be moving to another province, consider learning about the laws of that province. That way, you can prepare for your agreement to be enforceable in your new province.

For more information about issues related to children of unmarried parents, see the following Information Pages. 

Sometimes, a person may want to limit their role as a parent in the cohabitation agreement. This often happens when that person is in a romantic relationship with someone who already has children. They may not want to be responsible for their partner’s children if the relationship ends. As mentioned above, that person can only show their intention in a cohabitation agreement. The Court can take this into consideration, but it will not be binding on the Court. The Court will assess whether the person stood “in the place of a parent” even though they are not a biological parent. If so, they will have rights and obligations of a parent.

For more information about “standing in the place of a parent,” see the following Information Page sections.

Partner support

Not everyone in a romantic or non-romantic relationship will be entitled to partner support upon separation. Without a cohabitation agreement, you must be Adult Interdependent Partners (AIPs) before one of you may have a claim for partner support under the Family Law Act.

Courts will generally respect the intentions of the parties regarding partner support. However, the parties should be able to show that they had thought about their possible circumstances at the end of the relationship. Did the parties consider whether it would be possible for them to be self-sufficient if the relationship broke down? You can try to “waive” your right to partner support in your cohabitation agreement. In other words, you could try to “contract out” of your right to partner support. However, because it is hard to know the future, you can never be absolutely sure that it will be binding.

If one of the parties applies for partner support after separation, the Court would need to see a valid reason to set aside the partner support clause. The Court would consider such questions as:

  • What was the intention in waiving partner support at the time the parties signed the cohabitation agreement?
  • Has ending the AIR left one partner unable to support himself or herself?
  • Is there any other valid reason to set aside the partner support clause?

See the Partner Support under the Family Law Act Information Page for more information about this topic.

Property division

In Alberta, if you are not married to the other person, you do not have a legal right to any property that is not in your name. It does not matter:

  • how long you have been living with the person;
  • whether or not you paid for the property; or
  • whether you helped maintain it.

If it is not in your name, you are not automatically entitled to any of it. The same is true for debts. If a debt is in your name, the debt is legally yours to pay.

Therefore, you may each want some protection when it comes to property. Courts tend to respect the intentions for property division in a cohabitation agreement. A cohabitation agreement can set out your property rights if you separate, including:

  • How assets will be divided. This can include those you currently own and anything you may get in the future.
  • How debts will be dealt with.
  • How property values will be determined.
  • The value of assets you each brought into the relationship. This is a way to “lock-in” that value so it will be not be part of the division of shared property.

Some couples may choose to have both of their names on some property. This is called “joint ownership.” This is a serious legal step with advantages and disadvantages. For more information, see the “Understanding joint ownership and debt” section of the Before Moving in Together: Legal Considerations Information Page.

There may be times when you are unable to put both names on a property. A cohabitation agreement can make it clear that you still intend to each have a right to half of it.

For example:

  • You and your partner decide to buy a house together.
  • Only your partner is approved for a mortgage.
  • As a result, your partner will be the only name on the title. Legally, this means that only your partner owns the house.
  • With a cohabitation agreement, if you separate, you both already know how you plan to divide the value of this property. Without one, you could find yourself fighting it out in court.

In your cohabitation agreement, you can include each party’s responsibility for debt repayment. However, be aware that your agreement will not bind third parties. For example: Your partner may have agreed to pay their share of a debt that both of you owe. However, if they do not follow the agreement, the creditor could still make you pay all of it. For more information about this, see the “Understanding joint ownership and debt” section of the Before Moving in Together: Legal Considerations Information Page.

Be Aware

In a cohabitation agreement, an unmarried couple can agree to divide their property using the rules laid out in the Matrimonial Property Act. That law is only for married spouses. Its rules will not automatically apply to unmarried partners.

Be Aware

Under the law, pets are also considered property. For more information, see the "Pets” heading of the “Other issues to consider in a cohabitation agreement” section below.

Property division is a complicated area. To learn more about it, see the Property Division for Unmarried Couples Information Page

More information

See the following resources for more information about:

  • things to consider when making a cohabitation agreement; and
  • what to include and what not to include in an agreement.

Be aware that most of these resources are not from Alberta. This means that purely legal information about provincial laws does not apply to Albertans. However, there is much other good information.


PDF Living Together or Living Apart
Legal Services Society
Chinese, English, French, Punjabi, Spanish
See p. 5-9.

Web Talk to your partner and make your own agreement
National Association of Women and the Law
English

Web Making an agreement when you live together
Legal Services Society
English

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi

Web Safeguarding Enforceability Of Domestic Contracts
Kirk Montoute LLP
English
This is a private source and can be a challenge to read. Learn more here.

Web Boomerang kids... making it work
BC Council for Families
English
 

The following resources are not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Do we need a cohabitation agreement? : Understanding how a legal contract can strengthen your life together
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 6 and Appendix C.

Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law LibrariesThe Alberta Library. See Chapter 15.
Other issues to consider in a cohabitation agreement: Planning for illness and death, pets, pensions, businesses, and solving future disagreements

Issues about death

You also need to write a Will

Many people who live in a marriage-like relationship assume that if they die without a Will (also called dying “intestate”), their partner will automatically get everything. This is not necessarily the case.

To plan for what will happen to your things when you die, you can write a Will. Remember to review it as your life changes.

Be Aware

The legal requirements for making a Will are different than the legal requirements for a cohabitation agreement. They are 2 separate documents. See the Planning for Death Information Page for more information about writing a Will.

Designation of Beneficiary forms

There are certain types of things that do not pass through the Will. Instead, they go directly to a specific person. This includes assets and policies that are left to someone (called the “beneficiary”) because that person is named on a “Designation of Beneficiary” form.

When you buy or set up certain financial benefits, you are asked to choose who will get the money if you die. This person is called the “beneficiary.” You name the person by filling out a “Designation of Beneficiary” form. Some examples include:

  • life insurance;
  • Registered Retirement Savings Plans (RRSPs); and
  • Tax-free savings accounts (TFSAs).

You may or may not want to name your partner as a beneficiary on a Designation of Beneficiary form. This is something to think about when you move in together. You can also reconsider it as your relationship changes.

Pension plans may also use a Designation of Beneficiary form. However, the beneficiary may be automatic instead. This can happen if the plan defines a “pension partner.” For example: the plan may say that your spouse or your Adult Interdependent Partner is your pension partner. A pension partner will get the death benefits from the plan. They may also be entitled to a share of your pension if you separate. For more information, contact the administrator of your pension plan.

The effect of death on a cohabitation agreement

Cohabitation agreements should include clauses that address what will happen if one of the parties dies. This will help make sure that each partner would get what the other intended. This could be important if there was a conflict between the agreement and the partner’s Will.

Also, the terms of the cohabitation agreement are very important if the parties had separated and one party is still paying support at the time of death. This is because child support and partner support payments usually end if the payor dies. However, the agreement can say that the payments are to continue after death. For more information, see the following Information Pages.

For more information about how death impacts a domestic contract, see the following resource.

Web Entitlement to Support Despite Prenuptial Agreement – The Butts Case
Wagner Sidlofsky LLP
English
This resource is from a private source outside Alberta. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Impact on Death (article included in "Domestic Contracts")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Issues about illness: Substitute decision-making

Many people living in a marriage-like relationship assume that if they become incapable of making their own decisions, their partner can just take over. They believe that medical staff, banks, and other service providers would simply take direction from their partner. This is called “substitute decision-making”.

These beliefs are wrong. Alberta law does not give anyone automatic substitute decision-making power. As a result of these incorrect beliefs, many people do not complete the legal paperwork required to give their partner this authority. This can cause a lot of problems later on. You cannot simply add a clause about substitute decision-making in a cohabitation agreement. Cohabitation agreements and documents about substitute decision-making are separate legal documents with different legal requirements.

To plan for a time when you will no longer be able make decisions for yourself, there are two different legal documents that are required:

  1. a Power of Attorney, which is for financial decisions; and
  2. a Personal Directive, which is for all other decisions.

For more information about substitute decision-making, see the Planning for Illness Information Page.

Pets

People who live together in romantic or non-romantic relationships will often decide to have pets together. Some couples will even have pets as a “trial run” before deciding whether or not to have children. For many people, pets are members of their family. In fact, often people use the term “custody” when discussing who will take care of the pets after a relationship breaks down. 

Legally speaking, however, pets are not family members, but property. As such, for unmarried couples, a court would generally look at who “owns” the pet, both on paper and in terms of who really took care of the pet.

That said, pets are not treated in quite the same way as other property. Judges have even been known to grant orders that two former partners share the care of their pets.

Given the unique nature of pets, it can be better for everyone if the issues can be resolved by agreement. A cohabitation agreement is a great opportunity to settle issues relating to pets, including who the pets will live with, who will pay for their veterinary bills, and more.

To learn more about how pets are dealt with when couples separate or when two people stop living together, see the “Pets” section of the Property Division for Unmarried Couples Information Page.

Pensions

When you are completing a cohabitation agreement, there may be questions about pensions that you want to resolve, such as:

  • What happens to the money if the person who is contributing to the pension dies?
  • What happens to the money if you separate?

Unmarried partners typically do not have many property rights to assets that are not in their name. However, sometimes pensions are treated differently than other property. For example: if the person contributing to the pension plan dies, their partner may automatically be entitled to receive death benefits. Every pension plan is different. Every pension plan has its own rules about:

  • death and disability benefits; and
  • if and how the pension can be divided when couples separate.

This is a very complicated area. You will want to know what rules govern your plan. You may need to find out the exact steps required to keep your pensions separate. Check your pension plan paperwork or talk to the administrator. You will also need to check the specific law that governs your plans. It may be provincial law or federal law depending on the pension plan. And, there may be case law that has addressed your particular pension plan.

A lawyer who is familiar with pension plans can be very helpful in writing this part of your cohabitation agreement. For more information, see the Working with a Lawyer Information Page.

See the “Pensions” section on the Property Division for Unmarried Couples Information Page for:

  • information about how pensions are divided when unmarried partners separate without a cohabitation agreement, and
  • links to pension laws.

If you own a business

If you have your own business, you may want to protect it even if your partner helps you run it during the relationship. This is a very complex area of law—consider consulting a lawyer. For more information, see the following resources.

Web Cohabitation and Protecting a Business
Self-Counsel Press
English
This is a private source. Learn more here.

Web Divorce and family businesses
Kirk Montoute LLP
English
This is a private source. Learn more here. This article was written for married spouses, but the same general information applies to unmarried couples too.
 

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Identifying Corporate Aspects of Family Law (article included in "All That Touches Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Solving future disagreements (also called “dispute resolution”)

Your cohabitation agreement can include terms about how you want to handle disagreements in your relationship. For example, you can agree to try alternative dispute resolution (such as mediation) before starting any court action. For more information about this, see the Alternative Dispute Resolution Information Page.

Getting independent legal advice

A court can set aside an agreement if it believes that one party did not fully understand the agreement. One of the ways to make sure you understand an agreement is by getting “independent legal advice.” This means that you consult with a lawyer about a contract you want to sign before signing the contract. The lawyer makes sure that you understand:

  • the law that applies to the contract;
  • your rights and responsibilities under the contract; and
  • possible legal consequences of the contract. In other words, what could happen as a result of signing the contract.

There are other possible benefits of getting legal advice. A lawyer can:

  • help you consider whether you should enter into an agreement at all;
  • tell you what options you might have if you don’t sign the agreement;
  • catch any topics or issues that you may have missed or hadn’t thought about; and
  • make sure that the terms or conditions in your agreement are clear.

For the advice to be “independent,” both you and the other party must have your own lawyer. You cannot both go to the same law firm.

Independent legal advice is only required for agreements about property division for married spouses. However, you may wish to get independent legal advice whenever you enter into any type of family law agreement. If either of you does not get independent legal advice before signing the agreement, a court may take this as evidence that the party did not truly understand the contract. As a result, the Court may set aside the agreement.

The lawyer who gives legal advice will usually sign a Certificate of Independent Legal Advice. This certificate confirms that you:

  • understood the agreement;
  • received advice about how the agreement affects your legal rights and interests; and
  • chose to enter into the agreement on your own free will, without being pressured into it. There should be a specific clause in the certificate to say that the lawyer confirms this.
Tip

Even if the other party does not want independent legal advice, you may want to insist that they get independent legal advice to protect you. This is because doing so will make it more likely that the agreement is enforceable.

You may choose to have a lawyer write your cohabitation agreement. Or, you may decide to write it yourself. You could consult with a lawyer at any time in this process. For more information, see the Working with a Lawyer Information Page.

For more information about getting independent legal advice and why it can be very important, see the following resources.

Web All About Independent Legal Advice (Family Law ILA)
Kahane Law Office
English
This is a private source. Learn more here.

Video Independent Legal Advice and Separation Agreements
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here. This resource is specific to separation agreements, but some concepts still apply.

Web ILA: Independent legal advice and how it works
Sullivan Law
English
This resource is from a private source outside Alberta. Learn more here.

Video Demandez à un expert - Vidéo 1
Family Law NB
French
This resource is from outside Alberta. Learn more here.
 

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Providing disclosure

When you enter into a domestic contract, you must provide “complete disclosure.” Complete disclosure means that all parties involved in the agreement must give each other full and accurate information. This includes financial information. Each of you needs to know all of the information to decide whether a deal is fair. This is the purpose of complete disclosure.

The parties cannot lie about the facts on which the agreement is based. Lying includes leaving out (“omitting”) important information. Fair and lasting agreements are based on being honest. If it is later shown that someone lied, or one party misled the other about relevant information, the agreement can be set aside. A full and thorough disclosure is the best way to prevent your agreement from being set aside.

Common mistakes when making a cohabitation agreement

To make sure your cohabitation agreement will stand up in court (as much as possible), there are some common problems that you should try to avoid.

Not enough disclosure

“Complete disclosure” means that all parties involved in the agreement must give each other full and accurate information. This includes financial information. Having full and complete disclosure between the parties may be the single most important thing when you enter into a family law agreement.

Each of you needs to know all of the information to decide whether a deal is fair. Even when the other party has a general idea about your financial situation, you still have to actively disclose. This means telling the other party about all assets and debts. Generally this includes information about the exact amounts as well. When it comes to disclosure, the more the better.

A court is likely to set aside an agreement if it finds that when the agreement was made, one party:

  • lied about the facts;
  • left out certain information; or
  • hid some of their assets.

Future uncertainties affects whether certain terms can be enforced

It is impossible to see the future. Yet sometimes, future events can affect whether the terms of an agreement will hold up in court.

For example, this can be a concern for parties who wish to contract out of any future partner support. Parties can agree to waive partner support in a cohabitation agreement. However, the circumstances at the time of separation will be a big factor in determining whether the waiver will be enforced. When a court looks at whether one partner should pay partner support to the other, there are many factors to be considered. One factor is whether the circumstances at the end of the relationship were anticipated by the parties when the agreement was signed. So, if you intend to waive partner support in a cohabitation agreement, you have a challenging task. You must try your best to plan for all the possible circumstances that may arise in the future. For example: an illness or an accident. You need to look ahead to see whether it will be possible for each of you to look after yourself if the relationship breaks down.

Independent legal advice that isn’t really “independent”

Although independent legal advice is not required for cohabitation agreements, it is very good to have. Without getting independent legal advice, the parties may not truly understand the contract when they sign it. As a result, a court may decide to “set aside” the agreement. For more information, see the “Getting independent legal advice” section above.

For legal advice to be truly independent, each party must have their own lawyer. The lawyers should not be associated with each other at all. For example: two lawyers who work in the same office would not be independent. Also, the lawyers should not be connected to either party. For example: a lawyer who is related to your partner would not be independent.

The purpose of independence is so that you do not need to be worried about the opinions or reactions of the other party. This means that:

  • You can feel free to ask questions and express your concerns.
  • The lawyer can be direct about any risks or disadvantages you may face under the contract.
  • The lawyer can more easily determine if you feel any pressure to sign the contract. Remember that for a contract to be valid, you must freely consent to sign it.

Independent legal advice is a serious step. You will need to do more than just show up for the appointment. To properly advise you on the agreement, the lawyer will need some context and background information from you. Remember that a lawyer who gives independent legal advice is more than just a witness. A lawyer cannot give good advice if they do not have the required information.

Wishful thinking

Sometimes, one party may sign an agreement believing that it is only a formality. They may be convinced that the agreement:

  • “doesn’t actually count”;
  • is intended to keep someone else happy; or
  • is just to reduce future tax obligations.

However, a cohabitation agreement is a legally binding contract. If you do not take it seriously, you may be stuck with an agreement that is not good for you. Getting independent legal advice can help you understand how the terms of the agreement matter for your situation.

Aboriginal matters and on-reserve considerations

For many of the issues above, being Aboriginal does not change anything. However, if you live on-reserve there can be major differences (even if you are not Aboriginal). Specifically, in Alberta, non-married couples have more rights to the family property if they live on-reserve than they do if they live off-reserve.

For more information about on-reserve property rights during your relationship, see the “Aboriginal matters and on-reserve considerations” section of the Living Together: Common Law Partnerships & Adult Interdependent Relationships Information Page

For more information about on-reserve property rights if you separate, see the Family Breakdown if You Live on Reserve Information Page.

Blended family considerations

The law around cohabitation agreements is no different for blended families than it is for any other families.

However, a person who is in a blended family usually has more complicated family obligations. If you or your partner has children from previous relationships, there may be additional issues you want to deal with in your cohabitation agreement. In this case, it may be very helpful to work with a lawyer to create your cohabitation agreement.

For more information, see the Working with a Lawyer Information Page and see the following resource, which is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

 
LGBTQ considerations

The law around cohabitation agreements is no different for LGBTQ families than it is for any other families. Unfortunately, LGBTQ families sometimes still face social stigmas and battles that non-LGBTQ families may not. Additional issues could arise if they are not “out” to extended family members. As a result, it is especially important to have legal documents that identify the nature of the relationship. These include Adult Interdependent Partner Agreements, cohabitation agreements, Wills, Personal Directives, and Powers of Attorney. These documents must be clear and specific.

When there are more than 2 parties involved in a cohabitation agreement

Cohabitation agreements can be used by multiple parties who are living together (or planning to live together).

Extended families

Sometimes, there is a need for a cohabitation agreement between several people who have different relationships to each other. Some may be romantically involved, while others are not. For example, 2 romantic partners may live with the parents of one of the partners. The 4 parties who are living together may want to outline their rights and responsibilities to one another.

The law around cohabitation agreements is no different for extended families than it is for any other families. The details of the agreement itself may be more complicated if there are more parties involved. Adults are largely free to contract as they wish, and can set their own “rules” for their relationships. As with all agreements, any terms that are against the law or against public policy will not be enforceable in court. See the “Before you start: Contract law basics” section above for information about what makes an agreement valid.information about what makes an agreement valid.

Polyamorous relationships

Under federal law, a person cannot have more than one common-law partner at the same time. Similarly, under the Alberta Adult Interdependent Relationships Act, a person cannot have more than one Adult Interdependent Partner (AIP) at the same time. Also, a person cannot become the AIP of another person if one of them is already living with his or her married spouse. Therefore, there can only ever be 2 partners who are subject to the rights and obligations provided by federal or Alberta laws.

However, it is possible to have more than 2 parties to a cohabitation agreement. In fact, a cohabitation agreement is a way for polyamorous families to set their own “rules.” This can be helpful since neither federal nor provincial laws will give them any protection. However, polyamorous relationships are not recognized under the law. As a result, enforcing a cohabitation agreement between multiple romantic parties can be difficult. In particular, any term that is considered to be “against public policy” will not be enforced. See the “Before you start: Contract law basics” section above for more information about this.

The issues that could arise in polyamorous relationships can be very complex. Therefore, it may be very helpful to work with a lawyer to create a cohabitation agreement. For more information, see the Working with a Lawyer Information Page.

Once you have a legally binding cohabitation agreement

Once you have an agreement, keep it in a safe place. It is a good idea to sign multiple original copies so that both parties and your lawyers (if you have lawyers) will have one. You do not have to file the cohabitation agreement anywhere.

You and the other party may decide to update or change the cohabitation agreement from time to time or when certain events happen.

Changing a cohabitation agreement

Sometimes, you might need to change (or “amend”) your agreement because your circumstances have changed. This can happen even if you have already spent a lot of time coming to an agreement in the first place. You can change, add to, or even cancel your agreement as long as all parties to the agreement agree to do so.

For more information about changing your agreement, see the Process tab of this Information Page, and the following resource.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

What happens if your relationship ends?

In general, the terms of your cohabitation agreement will govern the legal issues that come up when you separate. If the cohabitation agreement is followed and the agreement is not challenged in any way, you may never need to involve a court.

However, one or both parties may simply refuse to follow the agreement. Or, they may claim that there is a legal reason that the agreement (or parts of the agreement) should not be enforced. Then you may need to involve a court.

For more information about what happens with a cohabitation agreement when a non-married couple separates, see  the Relationship Breakdown if You Had a Domestic Contract Information Page.

What happens to our cohabitation agreement if we later get married?

A cohabitation agreement is made by people who are not yet thinking about getting married. However, couples with a cohabitation agreement may decide to get married later on.

The law treats married and unmarried couples quite differently. So, an agreement that is valid before you get married will not necessarily be valid after you get married.

For example, the property rights of married couples are very different from the property rights of unmarried couples. For married couples, the division of property is governed by its own law, called the Matrimonial Property Act. This law has certain requirements for any property-related domestic contracts. For example: independent legal advice is required rather than optional. Before you are married, you may be able to create a valid cohabitation agreement dealing with property without independent legal advice. But after you are married, an agreement like this will not be valid.

If you think you might get married later on, you may want to sign an agreement that will govern the entire life of your relationship. Any such agreement must have the necessary requirements of both a cohabitation agreement and a pre-nuptial agreement. Then it will be legally able to govern your relationship both before and after you are married.

When people who have a cohabitation agreement marry, one of the following may happen:

  1. the cohabitation agreement continues on through the marriage. It basically becomes a pre-nuptial agreement; or
  2. the cohabitation agreement “dies” once the couple gets married. The couple will have to decide whether to create a new agreement to cover their marriage. This would be called a marriage agreement.

If you want your cohabitation agreement to continue through the marriage

For a cohabitation agreement to be a valid agreement after you are married, there are 2 requirements:

  1. your cohabitation agreement must specifically state that it will continue through your marriage if you later marry; and
  2. for dealing with property, it must meet the requirements for domestic contracts under the Matrimonial Property Act.

The Matrimonial Property Act has 3 requirements.

  1. The agreement must be in writing.
  2. The agreement must have been freely agreed to.
  3. Each spouse must have had independent legal advice and signed the agreement in front of their lawyer. This means that each must have their own lawyer. Each lawyer will then give a “Certificate of Independent Legal Advice.”
Be Aware

Different provinces have different rules about domestic contracts. If you know that you will be moving to another province, be sure to consider that province’s rules. That way, you can plan for your agreement to be enforceable in your new province. For information about who can help with this, see the Solving Legal Problems & Out-of-Province Issues Information Page.

If you don’t want your cohabitation agreement to continue through the marriage

If you want your cohabitation agreement to end when you get married, you can either:

  • say that right in the agreement itself; or
  • not say anything at all.

If you decide to get married and let your cohabitation agreement come to an end, you have 2 options.

One option is to create a new agreement to govern your married relationship. If you make this agreement:

  • before you get married, it would be called a pre-nuptial agreement.
  • after you get married, it would be called a marriage agreement.

For more information, see the Pre-nuptial & Marriage Agreements Information Page.

The second option is to simply let the law for married couples apply. Keep in mind that you do not have to have an agreement to govern your relationship. For more information about the law that applies to married spouses, see the Getting Married Information Page and the Property Division for Married Spouses Information Page.  

Be Aware

Even though a pre-nuptial agreement is made before a couple gets married, the agreement only takes effect after the couple gets married. This could be a problem if they sign a pre-nuptial agreement but don’t get married. The terms of their pre-nuptial agreement will not yet apply. They will only have the rights and responsibilities the law gives them. Or, if they also have a valid cohabitation agreement, that will still be in effect. It can govern their pre-marriage relationship breakdown.

Two agreements or one agreement?

It may seem easier and cheaper to have one agreement. It could start out being a cohabitation agreement and then become a pre-nuptial agreement if you marry. However, before making this decision, you may want to consider the issues discussed below.

Cohabitation and pre-nuptial agreements have different goals and are subject to different laws

A pre-nuptial agreement is made when 2 people are planning to get married, while a cohabitation agreement is not. For a pre-nuptial agreement, you will have to consider the effects of the Divorce Act and the Matrimonial Property Act. These laws only affect married spouses. You would not consider those laws if you were making a cohabitation agreement. Instead, you would want to review the law about the breakdown of unmarried relationships.

A combined agreement would have to consider all of the laws governing separation for both unmarried and married couples. As a result, the agreement:

  • will likely be very complicated;
  • may have interpretation issues later on if a court were to look at it; and
  • may end up being more expensive to make.

If you really want to have just one combined agreement, you will have to be careful. It must meet the legal requirements of both a cohabitation agreement and a pre-nuptial agreement.

A “combined” cohabitation/pre-nuptial agreement might not be enforceable before marriage

Another cause for concern with a single agreement to govern your relationship both before and after marriage is whether it will always be enforceable.

The Matrimonial Property Act states that an agreement about dividing matrimonial property is only enforceable after the parties marry. This applies to either a pre-nuptial agreement or a marriage agreement. As a result, there have been cases where courts have decided that a pre-nuptial agreement was unenforceable because the parties separated before they got married.

Therefore, if you really want to have just one combined agreement, the law requires that you be very clear about:

  • which terms will apply before you get married; and
  • which terms will apply after you get married.

You may not want to enter into a cohabitation and a pre-nuptial agreement at the same time

When you are thinking of signing a cohabitation agreement, you are likely not thinking about getting married. That’s why you’re not signing a pre-nuptial agreement. But over time, things might change. Things may look one way at the beginning of the relationship. They may look quite different several years into the relationship.

For example:

  • When you first move in together, you may agree to waive partner support. You agree that it will not be needed if you separate.
  • You live together for 10 years. One partner gives up a career to support the career of the other partner and to raise children.
  • In the 11th year, you marry.
  • At this point, would you still think that partner/spousal support should never be given?

If you sign a combined agreement when you first move in together, you may end up having to change the agreement. This may be because you feel differently about the issues now. It may be because of a big change in your circumstances. In such a case, you would not really have saved that much time, effort, or money by trying to complete both agreements at once.

Process

Learn more about how to make a cohabitation agreement, including:

  • Topics to include
  • Negotiating the terms of the agreement
  • Using a lawyer to write your agreement or doing it yourself
  • Finalizing your agreement
  • Making changes to the agreement

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: June 2017
Who is this Information Page for?

This Information Page is for people who are not married but are living together or planning to live together, and want to create a cohabitation agreement. This would set out the terms that will govern their relationship and what would happen if they separated.

This Information Page can apply to both romantic partners and non-romantic relationships.

Tip

If you are just starting out with this topic, it’s a good idea to begin on the Law tab of this Information Page. There you will find basic information about what the law says, what the words mean, and other issues that will help you understand the nature and legal requirements of a cohabitation agreement. Once you have the basics down, you will be in a better position to learn about the process of creating a cohabitation agreement.

You can work with a lawyer to help you draft an agreement and tell you about your legal rights. See the Working with a Lawyer Information Page for more information.

You are currently on the Process tab of this Information Page, which has information on the process of creating a cohabitation agreement. There is also important information in the Common Questions, Myths, and Law tabs above. In particular, if you have not already done so, you may want to review the “What the words mean” section of the Law tab.

Bringing up the topic

It can be hard to bring up the topic of signing a cohabitation agreement with your partner. It can be just as hard whether you are in a romantic or non-romantic relationship. On TV, we often see this type of agreement shown as a mean person trying to “give nothing” to another person upon separation. This is not necessarily true. A cohabitation agreement protects the parties as much as it may limit their rights. It can make the future more predictable and certain for the parties.

To bring up this topic, it can be helpful to find a time where you can talk together without being rushed. It can take time to have an honest conversation. Also, the other party might need time to get used to the idea.

It is very possible that the other party might not be happy about being asked to sign a cohabitation agreement at first. You may have to bring up this topic more than once before you are able to have a real discussion about it. This is a good chance to hear what the other party expects from the relationship.

It is also possible that the other party will refuse to consider a cohabitation agreement. You can try to tell the other party the reasons you want a cohabitation agreement. You can remind them about the reality that not all relationships last forever. But you should not try to force someone into signing a cohabitation agreement.

When discussing this topic, you may wish to encourage the other party to seek independent legal advice. It will be better if both parties understand their legal rights and responsibilities before entering into a cohabitation agreement.

You may also suggest that the other party give their input about the cohabitation agreement. It is usually better if an agreement can be worked out together. Then, it is less likely that one party will feel like the other took advantage of them.

Lastly, you can consider providing your financial disclosure when you bring up the topic. You will need to provide complete financial disclosure when you make the agreement anyway. Doing so at this stage can help to show that you are willing to be completely transparent, and not trying to hide things. This can help to build trust.

For more information about how to bring up the topic of signing a cohabitation agreement, see the following resource.

Web How to Talk about a Prenup: 5 Tips to Start the Conversation
McGurk Fraese Family Lawyers
English
This is a private source. Learn more here.


The following resources are not available online. The links below will give you an overview of the resources, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.
Before you start: Learn the law

Keep in mind that any family law agreement must follow the law. For more information about why this is important and what laws to be aware of, see the following sections on the Law tab of this Information Page.

  • “Before you start: Know your rights”
  • “Before you start: Contract law basics”
Remember

When writing a cohabitation agreement, you cannot ignore the law. If you include any terms in your agreement that are against the law, the agreement will not stand up in court.

Sometimes, people think (or are told) that learning about their legal rights and options is a bad thing. They believe that this might lead them to fight and “go to court” one day. This is not true. Writing your own cohabitation agreement does not mean that you can ignore the law.

Understanding your rights under the law may help you:

  • make informed decisions about the terms of the agreement; and
  • realize what you may be giving up by signing the agreement.

Sometimes people only find out afterward what their rights and options were under the law. This can lead to resentment and attempts at “undoing” the terms of the agreement. Sometimes one or more of the parties does not understand their rights when they make an agreement. In this case, the agreement could be “set aside” or “struck down” by a court.

Thus, any agreement will have more of a chance of success if everyone involved:

  • knows their rights and options; and
  • makes all of their choices with these rights and options in mind.

For detailed information about how unmarried partners are treated under the law, see the following Information Pages.

Figuring out what topics to include in your cohabitation agreement

Your first step in creating a cohabitation agreement is to think about what you want to include in the agreement. Only you know what issues are important in your situation.

You may want to begin by reviewing the Law tab of this Information Page. See these sections:

  • “Common topics to include in a cohabitation agreement”
  • “Other issues to consider in a cohabitation agreement”

As you do this, you can begin to make your list of issues. You may want to write down general areas of concern followed by some details related to those areas. For example, one general area may be “Children” and some related details would be their full names, birth dates, and whether they are children of previous relationships or the current relationship.

The rest of this section provides some questions to help you identify possible areas of concern and related details.

There are generally 2 main categories of issues in any cohabitation agreement:

  1. issues during the relationship; and
  2. issues if the parties end their relationship.

Issues during the relationship

These include the “everyday” stuff. How will bills be paid while you and the other party live together? How will household chores be divided between the parties?

There are 2 difficulties with including these types of issues in an agreement.

  • It is hard to enforce them. For example: are you really going to go to court when one party does not do their chores?
  • It is impossible to foresee the future. For example, you may each agree to pay half the rent, but what happens if one party loses their job?

However, some people may want the formality of putting certain everyday issues into the agreement. It may help them to treat those issues more seriously.

In deciding whether to include any everyday issues in your agreement, you could consider these questions.

  • Are there any everyday issues that concern you enough that you want them in the agreement?
  • What everyday issues are you most concerned about? Caring for the children? Discipline? Managing the household? Finances?
Remember

You cannot contract to do something that is against the law or against public policy. See the “Before you start: Contract law basics” section on the Law tab of this Information Page.

Issues if the parties end their relationship

Issues in this category can be complicated. In thinking about possible issues when you separate, you will have to figure out:

  • What do you want to happen?
  • What does the law require in your situation?
  • And finally, how can you fit “what you want” into “what the law requires”?

There are usually 3 main topics to consider when separating:

  1. issues relating to children;
  2. partner support; and
  3. property division.

For the law that governs these 3 topics, see the “Common topics to include in a cohabitation agreement” section on the Law tab of this Information Page.

Issues relating to children

The following questions may help you think about the issues that would be relevant to you and your family if you were to separate.

  • Do either of you have children from previous relationships? If so, include the basic information about these children, such as their full names and birthdays.
  • Do you have children from this relationship by birth or adoption? If so, include the basic information about these children, such as their full names and birthdays.
  • Who would be making important decisions about your children? For example, decisions about education, religion, and health. Will one of you have the “final say” or will you be making decisions together? Will the decision-making power fall to whomever has the care of the child when the decision needs to be made? This does not have to be only one of you. You can share the power to make decisions about your children with the other parent. But consider if you will be able to agree on the decisions. You may want to include your “intentions” behind these preferences.
  • Where will your children live? Will they live mostly with one parent or will they spend about equal time with both parents? If they live mostly with one parent, how much time will they spend with the other parent?
  • How much child support will one parent pay to the other? How will additional or “extraordinary” expenses be divided between you and the other parent? Remember that you are bound by the Child Support Guidelines.
  • If your partner has children from a previous relationship, do you want to be a “parent” to these children? Would you want to maintain a relationship with your partner’s children?
Remember

The law sets 2 major limits on arrangements made for children. First, any decision regarding children must be made in their best interests. This includes guardianship, contact with the child, and child support. Second, a court can always have the final say about what the child’s best interests are. It does not matter what the parties involved have agreed upon.

For detailed information about how these topics are treated under the law and other things you might want to consider when making these choices, see the following Information Pages:

Partner support

Below are some questions to consider when thinking about terms of partner support if you were to separate.

  • Will one of you pay partner support to the other? Or will there be no support paid by either of you? Or, will it only be payable if you remain in the relationship for at least a certain number of years? Or, will you follow what the law requires for the status of your relationship at the time of separation?
  • If you decide one of you will pay partner support to the other, will the support be a lump sum payment or a fixed monthly amount?
  • Do you want to plan for exclusive possession of some of the property? For example, the condo or vehicle you purchased together may be used exclusively by one of you for a certain amount of time. This could help that person become independent again.

For more information, see the Partner Support under the Family Law Act Information Page

Property division

When unmarried people divide their property, the general rule is “what’s yours is yours and what’s mine is mine.” So if a property is in your name, it is generally considered yours to keep. If it is in joint names, it is to be divided. But you can use a cohabitation agreement to set your own rules about dividing property. Keep in mind that property is more than just the things you own (your assets). It also includes the things you owe (your debts).

Here are some questions you may want to ask about how property will be handled if you were to separate.

  • What will be treated as separate property and not subject to any kind of division? What will be treated as shared property and subject to division? Do you want the default common law to apply? Or, do you want everything bought by either of you up until the date of the cohabitation agreement to be considered “separate property”? Then have everything obtained after be “shared property” no matter whose name is on it? Or, do you want certain properties to be considered shared while everything else remains separate? For example: the house you live in and the car you drive may be considered shared even if it is in one person’s name, while your RRSPs and pensions remain separate.
  • How would the shared property be divided? Would each party automatically get half? Or, do you want to base the division on how much each person has contributed to the asset up to the time of separation?
  • Do you intend to transfer property between each other upon separation? If so, you may want to specify how this transfer will happen.
  • What debts will be treated as separate debts and what debts will be treated as shared debts? Is a debt separate unless it is shown that it is a “family debt”? Or, do you want everything each of you owes up until the date of the agreement to be “separate debts”? Then have every debt taken on after be considered “shared debt”? Or, do you want certain types of debts to remain separate while other types of debts will be shared? For example: you may want your student loans to remain separate while your credit card debts will be shared.
  • How will shared debts be divided? Does each party automatically owe half?
  • What is the value of certain assets right now? If they increase or decrease in value by the time you split up, how will you account for that?
  • Did either of you bring anything into the relationship? Do you want to take back what you brought into the relationship? For example: if you made the down payment for a condo but the following mortgage payments are divided equally between you and your partner, do you want to “keep” the down payment amount before any further division?

Three specific types of property that you may need to think about are:

  • pets;
  • pensions;
  • any business that you own.

For information about these, see the “Other issues to consider in a cohabitation agreement” section on the Law tab of this Information Page.

For more information about how property division is treated under the law, see the following Information Pages:

More information

For more information about things to consider when making a cohabitation agreement, such as what to include and what not to include, see the following resources. Most of these resources are not from Alberta, so purely legal information about provincial laws do not apply to Albertans, but there is much other good information.


PDF Living Together or Living Apart
Legal Services Society
Chinese, English, French, Punjabi, Spanish
This resource is from outside Alberta. Learn more here. See p. 5-9.

Web Talk to your partner and make your own agreement
National Association of Women and the Law
English
This resource is from outside Alberta. Learn more here.

Web Making an agreement when you live together
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.
 

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Do we need a cohabitation agreement? : Understanding how a legal contract can strengthen your life together
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 6 and Appendix C.
Negotiating the terms of your cohabitation agreement

You have taken the first steps in preparing your cohabitation agreement:

  • learning about your rights and obligations under the law; and
  • listing the issues that you think are important for your situation.

Now you and your partner can begin negotiating about each issue. Your goal is to try to come to a result that satisfies both of you.

The process of negotiation involves:

  • compromise;
  • trying to understand the other person’s needs; and
  • communicating your needs to the other person.

Having a “give and take” mentality during your negotiation may work better than simply giving the other party a list of demands. Be sure to take notes of your oral agreements during your discussion so you can include them in the written agreement.

For information about negotiating styles, see the “Negotiation” section of the Alternative Dispute Resolution Information Page.

Including disclosure in your agreement

Having complete and accurate disclosure is very important when you are creating a cohabitation agreement. You can add the disclosure to your agreement as a “schedule.” This is a legal word for relevant documents attached to a contract.

When providing disclosure, more is better. A lack of disclosure could be a reason a court “sets aside” an agreement in the future. “Setting aside” an agreement means that a judge decides that there is something wrong with the agreement itself or how it was reached. Therefore, the judge says that the agreement does not have to be followed.

Don’t forget the small things

Ideally, you don’t want to leave any loose ends behind because they may lead to future disagreement. It might be a challenge to think of little details when dealing with a major change like moving in with another person. Take some time to consider whether everything has been accounted for.

For example: What if you decide that you would sell your home if you were to separate in the future? Some “small things” you may want to include in your agreement, but may easily forget, could be:

  • Who will hire a realtor to sell the home?
  • How will the listing price be decided?
  • How long after it has been on the market would you want to lower the listing price?

Be realistic

Be realistic with the obligations that you include in your agreement. Something might sound easy to do. For example: paying off a shared credit card within one year of separation. But, it might not be so easy at that time. It can be hard to predict your future situation. Therefore, think carefully about different options and possible outcomes.

Try not to rush

Creating a domestic contract with another person isn’t an easy task. It can be awkward to discuss when your relationship is going strong. You may be tempted to write up the cohabitation agreement quickly and just get it over with. However, it is important to be patient and not rush your agreement. It might be much harder to change your agreement in the future if you are unhappy with it. You will want to be satisfied with your agreement now, and in the future as well.

Drafting the agreement: Putting it down in writing

Once you and the other party have agreed on all of the relevant issues, you can create a written agreement.

You can either:

  • ask a lawyer to write up the terms of your agreement; or
  • write it yourself.

There is more information about these 2 options just below.

No matter who writes the agreement, you need to go over it carefully. You want to make sure that:

  • all the issues that were agreed upon have been included;
  • it accurately and clearly explains your intentions; and
  • all the legal requirements of a binding contract are met.

The courts will generally uphold a fairly negotiated agreement as long as the terms are reasonable.

Remember

Not getting independent legal advice before signing the agreement can result in problems. A court may find that the parties did not truly understand the contract when they signed it. As a result, the court may decide to set aside the agreement.

Using a lawyer

Lawyers have experience writing family law agreements and using standard terms and clauses. Therefore, having a lawyer write up your cohabitation agreement may save you some trouble.

A lawyer will also be able to tell you about:

  • the obligations and duties arising out of the agreement;
  • what rights you are giving up because of your agreement; and
  • how the agreement might affect other things you may not have been aware of. For example: tax consequences, debt owed to other people, or property in other places.

Even if you decide to write your own agreement, you could get some help from a lawyer at different stages in the process. For example, a lawyer could help you:

  • At the beginning: to help identify the issues and make sure you don’t forget anything. Also, to answer any questions you have about what the law says.
  • In the middle: to help make sure that the terms or conditions in your agreement are clearly written.
  • At the end: to point out the possible legal consequences of the contract, and whether you have given up any rights that you were unaware of.

Using a lawyer for only small parts of a legal matter is often called “unbundled” legal services. Many lawyers offer these services. For more information, see the Working with a Lawyer Information Page.

Doing it yourself: Format, sample clauses, and templates

There is no strict format to follow when drafting an agreement. However, keep in mind that any contract will have certain legal requirements. See the “Before you start: Contract law basics” section of the Law tab of this Information Page to learn about these legal requirements.

You may have seen agreement “templates” or sample agreements available on the internet or at bookstores. You can also get templates from your local library. Be careful using these templates. The law changes all the time and templates are not always up-to-date. Also, no template is specific to your exact circumstances. Everyone’s situation is unique.

Before you copy any clause into your agreement, it is important to carefully read it to make sure that:

  • you completely understand what it means; and
  • it applies to your circumstances.

The clause may sound good or you may know someone else who used it before. But that does not mean that it will be suitable for your situation. You must understand every part of a template before you use it in your agreement. Otherwise, you will not know if the agreement says what you actually agreed to.

You may wish to use these templates as a guide. However, remember that they are not a substitute for learning about your legal rights and responsibilities, and getting legal advice. Also, some of these templates can be quite expensive. You may be able to get some legal advice for a similar cost.

For some sample clauses and templates, as well as examples of terms you can include in your cohabitation agreement, see the following resources.

Web Talk to your partner and make your own agreement
National Association of Women and the Law
English
This resource is from outside Alberta. Learn more here.

Web Model Cohabitation Agreement for Domestic Partners
LexisNexis Canada
English
This resource is from a private source outside Alberta. Learn more here.

Web Family Law Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more here. Start with “Drafting considerations.”

Web Top 10 Tips on Drafting Domestic Contracts
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.
 

The following resources are not available online. The links below will give you an overview of the resources, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book The prenuptial guide: Contracts for lovers
The Alberta Library
English
Get the full book from The Alberta Library.

Book If You Love Me, Put It In Writing
Alison Sawyer
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. Start on p. 59.

Book Do we need a cohabitation agreement? : Understanding how a legal contract can strengthen your life together
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See p. 141-143 and 149 onwards.


Book Drafting Domestic Contracts (article included in "Domestic Contracts")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book Documenting the Deal (article included in "Cohabitation and Pre-nuptial Agreements")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full book from a library: Alberta Law Libraries / The Alberta Library.
Finalizing your agreement

To finalize your agreement, each party will have to sign it. Once it is signed, the agreement is binding. This means that you will each have to follow the terms of the agreement or the other party could take legal action against you. The agreement will take effect on the date it was signed, unless the agreement states a different day that it will take effect.

It is a good idea to each have a witness to your signature. Your witness watches you sign the agreement, and then they sign the agreement to “prove” that they watched you sign. The witnesses do not have to read the agreement. In Alberta, a witness can be anyone who is over the age of 18 and who does not stand to benefit from the agreement.

You do not have to be in the same room with the other party when you sign the agreement. Each party, with their witness, can sign the agreement at separate times. If that occurs, the agreement would take effect when the last signatures are made unless the agreement states a different date.

Tip

Before you sign the agreement, you may want to take some time to think about it. Family issues are important and often tricky. You’ll want to make sure that you do not rush into things and that you are certain about your decisions. If you are unsure whether you should sign an agreement, you may want to get independent legal advice. For more information, see the “Getting independent legal advice” section on the Law tab of this Information Page.

You should have original copies of your signed cohabitation agreement for each of the parties. Original copies are different from photocopies. Original copies are physically signed by all parties (and witnesses if there are any). If the parties received independent legal advice, then the lawyers involved may also each want to keep an original copy. Keep in mind that this means you could be signing quite a few copies of the document.

Changing a cohabitation agreement

Sometimes, you might need to change (or “amend”) your agreement because your circumstances have changed. This can happen even if you have already spent a lot of time coming to an agreement in the first place. You can change, add to, or even cancel your agreement as long as all parties to the agreement agree to do so.

Tip

Never change an agreement by crossing a term out, replacing it with another, and putting your initials next to the change. Simply crossing out terms can lead to problems enforcing it in the future.

For more information about changing your agreement, see the following resources.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

Web Cancelling or Breaking a Contract
People's Law School
English
This resource is from outside Alberta. Learn more here.

How to make changes when all of the parties agree

A cohabitation agreement can be easily changed if all of the people who signed the agreement agree to that change. This can be done by adding a second agreement to the initial agreement. This is commonly called an “amending agreement” or an “addendum.” The second agreement should specify which particular parts of the original agreement have been changed. Then it should set out the new terms. Remember to date, sign, and have someone witness the amending agreement to help ensure that the changes will be valid.

How to make changes when the parties do not agree

If the parties cannot agree about changing the agreement, they may need to find a way to resolve their differences. The original agreement may have a term describing how disputes would be resolved. If so, that would be a good place to start.

Otherwise, the parties will have to choose one of the 3 ways to work through disagreements:

  • on their own;
  • with the help of others out of court; or
  • by going to court.

For more information on how to resolve your own disputes, see the Coming to an Agreement on Your Own Information Page.

One way to get help out of court is through mediation. In mediation, the parties try to come to an agreement with the help of an independent and trained third party. The mediator does not take sides and does not make the decisions for you. For more information about mediation, see the “Mediation” section of the Alternative Dispute Resolution Information Page.

Going to court to change an agreement is complicated. You may want to get the advice of a lawyer. For more information, see the Working with a Lawyer Information Page.

Provincial Court

Queen's Bench

Back to Top