As more people in Victoria decide to live together without getting married – or get married later in life – common law cohabitation agreements have become more popular.
These legal agreements set out the terms of the relationship while a couple lives together and in the event of a relationship breakdown – thereby helping to avoid conflict and disputes.
They can provide very useful guidelines when a relationship begins, especially when one party brings more money or debt into the relationship than the other party or where there are children from a previous relationship.
The experienced family lawyers at Jennings Family Law in Victoria, BC, can help you enter a new relationship with greater peace of mind with a common law cohabitation agreement that is enforceable in the local courts.
There are generally three reasons why a couple may decide to draft and sign a cohabitation agreement – and the reason(s) that apply to you will affect the contents of your agreement:
If you want an agreement mainly for the first reason, this is relatively simple to accomplish. An agreement that covers the second or third reason – or both – is more complex and will take more time and thought in its creation.
A cohabitation agreement is a legal contract between you and your partner generally put in place before you start living together – though sometimes created afterwards.
Within such agreements, the following are the main issues usually covered:
Whether your cohabitation agreement is legally binding depends on who drafted it.
We can say that at Jennings Law here in Victoria, our agreements are always legally binding because we are intimately familiar with the relevant BC laws and are experienced in drafting agreements.
The same may not apply to online templates that have become increasingly available. These generic agreements may not meet the necessary standards required by BC law – especially with the concept of “significant unfairness” (see below).
If executed in the right way, a cohabitation agreement can save a lot of heartache as well as legal costs and lost assets in the future. However, if they are not legally enforceable, they are a waste of time and money.
Some cohabitation agreements drafted without knowledge or consideration of the concept of “significant unfairness” are set aside by the BC courts.
This means that some or all of the provisions made in the agreement may not be enforced by the judge.
For instance, if it is found that one of the parties in the cohabitation agreement took advantage of the other by failing to disclose key information about a significant property asset or debt, it can invalidate any provisions in the agreement that are affected by it.
Similarly, if one of the signatories was pressured into signing an agreement shortly before moving in together, it may not be enforceable in court.
This is because the concept of “fairness” is critical to the creation of such agreements – whether a common law cohabitation agreement or a marriage (prenup) agreement.
With online templates, there is no protection for this element of the law. If you and your partner take independent legal advice before signing the agreement and the agreement is drafted by a competent family lawyer, the concept of fairness is much more easily demonstrated in court if necessary.
Each party may want to receive legal advice on the following before signing an agreement:
After signing a cohabitation agreement, circumstances may change or new information may come to light for either partner.
If so, it is possible to change or cancel an agreement if both parties agree to do so.
To change a common law cohabitation agreement, you will need to make a second written agreement called an addendum agreement or an amending agreement. This document serves to change some parts of the first agreement – or to cancel and replace it.
If you find yourself in this position, it is best to discuss with the family lawyer who drafted the original agreement so that the new agreement is drafted correctly, witnessed, and legally enforceable.
At Jennings Family Law, our family lawyers are adept at creating legally enforceable cohabitation agreements that protect you and your assets when entering a new, common-law relationship.
Contact us today for a free consultation.