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Cohabitation Agreements During Covid-19 requires careful consideration. More and more millennials are living together with their partners and not getting married. Similarly, baby boomers who are recently divorced may not want to rush into remarriage. Should Couples Make a Cohabitation Agreement during Covid-19? In today’s blog, Fraser MacLean of our Fort St John office explains what cohabitation agreements are designed to do. MacLean Law has offices across Canada.

Cohabitation Agreements During Covid-19

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Cohabitation Agreements During Covid-19

A Cohabitation Agreement is a written agreement that is a legally binding contract. Essentially this contract is a written agreement between two people that sets out an obligation to do things a certain way, or not to do other things. Couples usually do not tend to enter into relationships with the intention of separating, but a well-written and binding Agreement might protect each parties’ interests when and if the relationship goes sour. A Written Cohabitation Agreement including Cohabitation Agreements During Covid-19, should include the following three sections:

  • recitals,
  • the substantive/operative clauses of the agreement; and
  • the concluding clauses.

MacLean Family Law Can Help 1 877 602 9900

Should you and your partner have a well-drafted Cohabitation Agreement with the help of MacLean Law’s cohabitation agreements lawyers? Cohabitation Agreements During Covid-19 need extra consideration because of greater uncertainty in predicting the future but there are many good reasons to negotiate a fair cohabitation agreement:

  1. Certainty as to how to share property during the relationship;
  2. Certainty as to how to divide the property if parties separate;
  3. Certainty as to what constitutes excluded property and its value;
  4. Certainty as to what happens in case of a partner’s death;
  5. Certainty as to spousal and child support – is one party intended to be the “bread-winner”? and, among others
  6. Certainty as to how to parent the children if the relationship ends. 

If you and your partner are considering entering into a Cohabitation Agreement, you should remember that Written Agreements on support and property division are subject to court intervention – meaning that a Court may decide that the Agreement is not clear or fair enough, and the Court might vary or set aside the agreement. Experienced cohabitation agreements lawyers at MacLean Law are able to advise you whether your Cohabitation Agreement satisfies requirements of procedural fairness (pursuant to Family Law Act, section 93(3)), and whether your Cohabitation Agreement property division is found to be significantly unfair in light of the parties’ intentions to achieve certainty and finality (pursuant to Family Law Act, section 93(5)) and significantly unfair on spousal support section 164.

Cohabitation Agreements Lawyers

According to the Supreme Court of Canada decision of Hartshorne v Hartshorne, 2004 SCC 22, there are some things to consider when drafting a Cohabitation Agreement:

  1. You need to value the assets that you bring into the relationship  – consider hiring an expert valuator for real estate and businesses;
  2. You need to anticipate, as much as possible, any future events and changes of circumstances of the parties – consider hiring an experienced lawyer at MacLean Law who has better knowledge of what you should expect and what falls under the category of “future events and changes of circumstances” Common errors involve failing to consider the impact of the birth of children;
  3. You need to provide for some means for equitable allocation of resources as the result of the marriage – a qualified and experienced lawyer would be able to guide you through what this might mean.

There are many traps and dangers with drafting a Cohabitation Agreement on your own or with the help of free ‘cookie-cutter’ software that could be found online. You should consider hiring a lawyer who is experienced in drafting said Agreements and can foresee and help you avoid the dangers of entering into a poorly drafted Cohabitation Agreement. In any event, your Cohabitation Agreement should include the following considerations (provided that they apply to your particular set of circumstances):

  • Preamble;
  • Recitals are correct and accurate;
  • Caring for and parenting with the children;
  • Security for support and enforcement;
  • Land clauses;
  • Pensions;
  • Business interests;
  • Inheritances;
  • Other excluded property;
  • Contents of family property;
  • Specific property, such as club memberships etc.;
  • Pets;
  • Mechanisms for Dispute Resolution; and, among others
  • Waivers, releases, and acknowledgments.

The list of considerations for what should go into a Cohabitation Agreement is not closed and will depend on the relationship and wishes of the parties entering into one. 

Don’t Delay!

Given the short time limits that apply to when parties are deemed to be in a marriage-like relationship, negotiating a cohabitation agreement needs to be done ideally before you enter into a committed relationship!