More & McLeod, Barristers & Solicitors
The Cohabitation Agreement
by: James B. More
A cohabitation agreement is an agreement between two persons who are planning to live together (the parties). It sets out what the legal rights and obligations of the parties will be on a separation or on the death of either of the parties.
Prior to entering into a cohabitation agreement the parties should make financial disclosure to each other.
It is advisable that one of the parities to the agreement obtain independent legal advice prior to signing the agreement.
A cohabitation agreement may specify that it is to remain in force in the event that the parties marry. It may be amended at any time if the parties agree.
The agreement is tailor made to suit the needs of both parties. It may be limited in its scope or very wide in its scope.
The cost of preparing the agreement will depend on its complexity.
Assuming that there are no dependent children of either party, the issues to be dealt with are as follows:
a) Property rights.
b) Rights to spousal support.
c) Right to a claim for support against the estate of a deceased party.
d) Right to act as administrator of the estate of a deceased party.
A typical situation is where one party owns the home where the parties will be living together. The agreement may provide that the home owner will retain exclusive legal and beneficial interest in the home and that the non-owner party will not acquire any legal or beneficial interest in the home.
In the absence of a cohabitation agreement the non-owner party may claim that he or she has a beneficial interest in the home as a result of financial or other contributions made to the home.
The agreement may provide that neither party shall have the right to claim spousal support from the other party. If there is no cohabitation agreement either party may claim spousal support from the other party if they have lived together for a period of three years or are the natural parents of a child.
The agreement may provide that neither party shall have the right to make a claim as a dependant against the estate of the other party.
The agreement may provide that the surviving party shall not have the right to act as administrator of the estate of the deceased party.
If one party has a dependent child or children the other party may become liable to pay child support as a result of assuming the role of being a parent to the child or children. The Court always has the right to over-rule provisions in any agreement relating to child support. The interest of the child always comes first. So, even if an agreement provides that one party shall not be required to pay child support to the party who is the natural parent of the child or children the Court may require that child support be paid.
A cohabitation agreement minimizes the legal issues that may arise if the parties separate and minimizes the legal expenses that may be incurred in the event of a separation.