Why Enter into a Cohabitation Agreement?
Many people in Alberta live in committed relationships without being married, and most of us are familiar with the idea of a ‘common law’ relationship or marriage. You may also be familiar with the concept of a cohabitation agreement, which follows similar principles to a pre-nuptial agreement, but relates to unmarried couples.
It’s important to note that the phrase ‘common law’ is no longer a term used in Alberta family law.
Our province has a different legal concept called adult interdependent relationships, governed by the Adult Interdependent Relationships Act (“AIRA”). AIRA determines who is in such a relationship.
A cohabitation agreement is simply a domestic contract. It doesn’t represent a lack of commitment or love between partners but rather a conscious desire to set out how property and finances would be shared or divided in the event of a split. Cohabitation agreements can be crafted based on the evolving circumstances of each couple.
Who is in an Adult Interdependent Relationship
There are several situations or circumstances in which individuals can enter into an adult interdependent partner agreement under AIRA.
In the first situation, to meet those conditions of being in an “adult interdependent relationship” you cannot be married, but you must share one another’s lives, be emotionally committed to one another, and function as an economic and domestic unit. In addition, you must have lived with the other person in a “relationship of interdependence” for a continuous period of not less than three years.
If there is a child of the relationship by birth or adoption, the period of three years is replaced with the phrase “a relationship of interdependence of some permanence.”
It’s also possible to enter into an Adult Interdependent Partner Agreement if these conditions are not met. The conditions for this occur when two people are related by blood or adoption or are in a non-romantic relationship.
AIRA identifies factors to consider when determining whether two people “function as an economic and domestic unit.” They include:
- How they behave when it comes to household activities and living arrangements
- The exclusivity of the relationship
- How they present the relationship to others in public
- The contributions they make to the other’s well-being
- The degree of financial independence or interdependence between them
- The care and support of children
- The acquisition, ownership, and use of property
How have the courts interpreted AIRA so far?
One decision that provides insight into AIRA was Ross v Doehl. In that case, one person was more committed to the relationship than the other. The court found that the dynamic of one person keeping their feelings and commitment hidden from the world does not mean there is not an interdependent relationship.
The court found that it was appropriate to be flexible and consider individual personalities, mental state, societal views and even work arrangements to make the interdependent relationship determination. Even in unpredictable or non-traditional living arrangements, the court may find that the individuals function as an economic and domestic unit.
For this reason, it’s essential for people to be honest and transparent with one another about their life choices. Entering a comprehensive cohabitation agreement could have prevented this case from proceeding to costly litigation.
What is covered by a cohabitation agreement?
As the previous case shows, a cohabitation agreement can bring legal protection and peace of mind. It can prevent your ex-partner from having a legal claim to shared assets, or it could prevent you from being found responsible for debts they have accrued while in the relationship. A cohabitation agreement can prevent one partner from unjustly profiting from the relationship. Being proactive and coming to an agreement at the beginning of your domestic life together can lead to greater transparency and relationship stability, in addition to saving legal fees if it doesn’t work out.
And, if the relationship does work out, this type of agreement can be combined with a pre-nuptial agreement to provide protection in the event of a subsequent marriage. It is not necessary to have two separate agreements to protect your property and rights.
The most common elements of a cohabitation agreement are:
- A division of assets and property
- A division of debts
- Exclusion of particular property from division
- Responsibility for payment of bills and expenses
- The custody, visiting rights, partner support, and decision-making relating to children
A cohabitation agreement must be signed by both parties. Both must also seek independent legal advice and be represented separately.
Our legal team is backed by decades of family law experience. We can explain all the legal implications of a cohabitation agreement, advise you on what can be included, and ensure that your interests are represented.