Mediation & Agreements

Mediation & Agreements

marriage, cohabitation agreements & pre-nups

A cohabitation agreement is usually entered into before or shortly after a couple starts living together. Generally speaking a couple enters into a cohabitation agreement  in order to preserve or protect the property or assets they are bringing into the relationship. Cohabitation agreements are often beneficial to parties wanting to address the following:

• preserving property;
• allocation of existing debts; and
• spousal support entitlement.

It is important to note that Family Law Act specifically states that any agreements that address issues like parenting responsibilities, parenting time and child support are not binding to the court unless entered into after parties separate. This means that a cohabitation agreement term that purports to deal with parenting responsibilities, parenting time and child support is not binding on the court. It may, however assist the court in determining what is an appropriate order in the circumstances. Ultimately, if the parties proceed to litigation the court will consider the best interest of the child when making orders regarding issues such as parenting responsibilities, parenting time and child support.

Cohabitation agreements are usually entered into when:

• parties anticipate the relationship being long term, and in particular when they plan to marry or become common-law spouses;
• one or both parties have a significant amount of property;
• one party makes substantially more then then other;
• one or both parties have a significant amount of debt;
• children from previous relationship are involved; and
• one or both parties anticipate receiving some property in the future (i.e. inheritance).

There are certain legal and formal requirements in order for a cohabitation agreement to be enforceable. The following are some basic rules that a cohabitation agreement must follow:

• the agreement must be in writing;
• the agreement must signed by each party and should be signed in the presence of a witness;
• neither party should be under a legal disability when entering the agreement;
• the agreement should clearly identify the parties to the agreement and their specific rights and obligations under the agreement; and
• both parties must make full disclosure of their circumstances before entering into the agreement.

The purpose of a cohabitation agreement is to be used by parties if the relationship comes to an end. It is difficult to know what the parties circumstances will be at some unknown date in the future.  As such, it is difficult to ensure that a cohabitation agreement will still be fair and appropriate when the agreement is to be in implemented. In order to ensure that a fair and appropriate cohabitation agreement is prepared it is often recommended that parties engage the services of a lawyer to assist in drafting a cohabitation agreement.