Pre-nups or Cohab Agreements: Benefits for married or non-married couples


I’m beginning to think that my computer believes I’m getting divorced. Being a lawyer who practices a lot of family law comes with some risks, including suggestions from a variety of online sources about how to prevent my own divorce.

That being said, this news article provides a quick summary of why a pre-nuptial agreement or cohabitation agreement can be beneficial. One caveat is that the author practices law in Ontario and the law on family matters varies province to province, particularly if you are not married.

In addition to outlining how a pre-nup or co-hab can function, the article also outlines certain limits.

One of the most frequent questions I receive when asked about a pre-nup or a co-hab is whether it can be an “iron clad agreement”, specifically whether it will be valid forever, no matter what. Unfortunately, as the article outlines, parenting, child support and spousal support cannot be permanently fixed in an agreement. Rather, each of those items change dramatically with time.

What if, at the time of signing the agreement, you were never planning on having kids, and you and your partner put into the agreement that, no matter what, if your relationship ended at some point absolutely no money flowed between you? Great idea. Very clear. You both know where you stand if you separate. The problem: what if you have a kid? And what if one parent takes a couple of years off work to help raise the kid? This is where the tension lies, because it’s not fair for a court to uphold the agreement, however clear and well-meaning it was when entered into, because of the change in circumstances.

A great pre-nuptial agreement or co-habitation agreement will be written after having discussed with you a bunch of “what if” questions and will try to capture a number of possible scenarios in its language.

Ultimately, the major value in a pre-nuptial agreement or cohabitation agreement is to serve as evidence about what your intentions were at the time of signing. Prenuptial agreements and cohabitation agreements have the most value in protecting the assets you enter into a relationship with.

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