Cohabitation Agreement Lawyers Edmonton

Cohabitation Agreement Lawyers

At Helm Family Law LLP, our family lawyers have experience negotiating, advising on, and drafting cohabitation agreements – whether they be straightforward cohabitation agreements or complex agreements involving business interests.

If you are considering entering into a cohabitation agreement, if your partner has suggested a cohabitation agreement, or if you need independent legal advice regarding a cohabitation agreement, schedule a consultation with one of our lawyers to learn your options and how to protect your interests.

What is a Cohabitation Agreement?

A cohabitation agreement is a type of Family Agreement which is a legally enforceable contract between two people who are either living together or about to begin living together. A cohabitation agreement will typically set out the parties’ rights, entitlements, and obligations regarding assets, liabilities, and adult interdependent partner support if the parties were to separate.

A cohabitation agreement is distinct from a prenuptial agreement in that there is generally no immediate intention for the parties to marry; however, a cohabitation agreement can address what happens in the case of marriage.

If you are interested in a prenuptial agreement, read our page on prenuptial agreements for more information.

What is Included in a Cohabitation Agreement?

There is a lot of flexibility regarding what can be included in a cohabitation agreement. A cohabitation agreement is a contract and parties have broad discretion as to how they choose to govern their affairs in accordance with the terms of the contract as long as the terms are not restricted by law or policy.

Most commonly we see parties address the following issues in cohabitation agreements:

Property Division: A cohabitation agreement can outline what property is being retained by each party after separation. In many cases people choose to keep the property they came into the relationship with as separate property and divide the property accumulated together equally. In other cases, people may choose to keep their finances completely separate.

Adult Interdependent Partner Support: Under the Family Law Act, those who live together in an adult interdependent relationship may become entitled to support in a similar way as to spousal support under the Divorce Act for a married couple. A cohabitation agreement can contain a waiver of adult interdependent support or it may specifically define the amount of support a party may be entitled to upon separation.

Insurance: A cohabitation agreement may include requirements for one of both parties to maintain certain insurance during the cohabitation or after separation, including life insurance and medical insurance.

Child Support: Some parties may try to determine child support in the case of separation while preparing their cohabitation agreement. Under Canadian law, child support is the right of the child and accordingly there are restrictions on individuals’ ability to agree on an amount of child support less than what the child may be entitled to.

Parenting: Parties may choose to address some parenting issues in a cohabitation agreement as an indication of the preferences of the parties regarding the children. The Court retains the ability to make Parenting Orders based on the best interests of the children and accordingly parenting terms are not always going to be upheld when litigated.

Alternative Dispute Resolution: A cohabitation agreement can include clauses requiring the parties to attempt alternative dispute resolution such as mediation if there is a dispute prior to attempting to litigate on an issue. These terms are largely consistent with the new Family Pre-Court Mandatory Requirements which were introduced on December 3, 2023.

Arbitration: In some cases, especially those involving wealthier individuals or those with a public profile, they may place an arbitration clause in their cohabitation agreement to try to avoid having information regarding their personal life filed with the court.

It is strongly encouraged that you consult with a family lawyer experienced in preparing cohabitation agreements to discuss what clauses best protect your interests and the enforceability of any proposed clauses you may want included in your cohabitation agreement.

What Are the Benefits of a Cohabitation Agreement?

The benefits of entering into a cohabitation agreement include:

Clarity: A well-crafted cohabitation agreement can provide clarity as to what will occur with property division and adult interdependent partner support upon separation. This can lead to peace of mind as the parties will understand what they are entitled to upon separation.
Autonomy: Without a cohabitation agreement, property division and adult interdependent partner support are generally determined for those in an adult interdependent relationship by the Family Property Act and Family Law Act respectively meaning that these issues are determined by legislation. By entering into a cohabitation agreement, the parties are able to decide how they want these issues to be addressed based on what works for them and their family, rather than legislation created by people who do not know their family or their personal circumstances.
Protecting Assets: Assets that an adult interdependent partner had when they began cohabiting will typically be exempt provided that the property was kept in separate names. However, the increase in value of exempt property may be distributed at the discretion of the Court in the case of a separation. A cohabitation agreement can protect the assets that the parties came into the relationship with by opting out of the Family Property Act and instead having the parties’ affairs governed through the law of contract with their cohabitation agreement.
Reducing Litigation: A well-crafted cohabitation agreement where both parties obtained independent legal advice prior to entering into the agreement disincentivizes litigation upon separation as both parties will typically expect the terms of the cohabitation agreement to be enforced.
Estate Planning: A cohabitation agreement can be used to prevent an adult interdependent partner from becoming entitled to property which are intended to be left to another family member in a will, such as children.

How Much Does a Cohabitation Agreement Cost?

A cohabitation agreement will typically cost between $1,500 to $3,000 in legal fees. In some circumstances involving complex agreements the cost may be higher.

To obtain an accurate estimate as to the cost of your cohabitation agreement, it is best to consult with a lawyer so that they can better understand your circumstances, what your goals are, and how much time it will take to prepare your agreement for you.

In some cases a lawyer may offer a flat rate for a cohabitation agreement, but it will typically be required for them to talk with you first so that they understand the particulars of your agreement.

Is Independent Legal Advice Required for a Cohabitation Agreement?

Independent legal advice is required to satisfy certain statutory requirements such as those under section 38 of the Family Property Act allowing parties to opt out of the majority of the Act.

Where there is no statutory requirement for independent legal advice, obtaining independent legal advice will increase the likelihood of the Court upholding the agreement if it were to be challenged.

In all cases it is encouraged to obtain independent legal advice prior to entering into a cohabitation agreement. More information about independent legal advice is available on our independent legal advice page.

Cohabitation Agreements Alberta

If you are considering entering into a cohabitation agreement or need independent legal advice on a cohabitation agreement, contact us today to schedule your no-obligation consultation with one of our family lawyers.

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Our Family Lawyers

The lawyers at Helm Family Law LLP have over 30 years of combined experience in providing professional, personalized, legal services. Our lawyers focus their practices solely on the areas family and divorce law.

Our lawyers represent clients throughout Edmonton, surrounding communities, and all of Northern Alberta, including Red Deer, St. Paul, Grande Prairie, Peace River, and Fort McMurray. Our lawyers are available for in-person and telephone consultations.

You can read more about our family lawyers at the “Our Team” page.

Cohabitation Agreements Frequently Asked Questions

How Long Does it Take to Prepare A Cohabitation Agreement?

The length of time it takes to prepare a cohabitation agreement depends on the complexity of the agreement, the extent to which financial disclosure has to be reviewed, and whether any negotiation or revisions are required.

For simple cohabitation agreements where no negotiation is required, preparing a cohabitation agreement can be completed in as little as 1 to 2 weeks depending on the lawyer’s schedule. In other cases involving complex agreements, the review of a substantial amount of financial disclosure, and negotiation regarding the terms of the agreement the entire process of entering into a cohabitation agreement can take 1 to 2 months or more.

In What Circumstances are Cohabitation Agreements Able to Be Challenged?

Challenging a cohabitation agreement is an extremely complex and nuanced area of law. If you are considering challenging a cohabitation agreement, you should consult with a family lawyer so that your specific circumstances can be carefully considered.

The following are some of the factors which are typically considered by the Court when assessing the enforceability of a cohabitation agreement:

Whether both parties had independent legal advice;
Whether financial disclosure was exchanged prior to entering into the cohabitation agreement;
Whether either party was under duress or undue influence;
Whether the terms of the cohabitation agreement are unconscionable;
Whether any of the terms of the cohabitation agreement are contrary to public policy.

Cohabitation agreements usually have solicitor and client cost clauses, which may require a party who unsuccessfully challenges an agreement to have to pay all the other parties’ legal fees. Potential issues with cohabitation agreements are best resolved prior to entering into the agreement.

Do I have to Exchange Financial Disclosure Before Entering Into a Cohabitation Agreement?

It is always preferable for both parties to exchange complete financial disclosure prior to entering into a cohabitation agreement. This allows both parties to be completely informed as to the other parties’ financial position and what they may be giving up entitlement to when they enter into the agreement.

Exchanging complete financial disclosure reduces the likelihood of the cohabitation agreement being successfully challenged in the future.

How Can I Reduce the Cost of a Cohabitation Agreement?

The primary determinant of the cost of a cohabitation agreement is how long it will take your lawyer to prepare it for you.

To minimize the costs of your cohabitation agreement you can collect and organize you and your partners’ financial disclosure and prepare a concise written summary of your desired terms and goals regarding your cohabitation agreement for your lawyer to review and reference while preparing the cohabitation agreement.

The financial disclosure exchanged prior to a cohabitation agreement will generally be the disclosure listed in the Notice to Disclose Desk Application which can be found at the Alberta Courts website https://albertacourts.ca/kb/areas-of-law/family/family-law-forms

Do I Need a Lawyer to Prepare a Cohabitation Agreement?

It is strongly encouraged to have a lawyer prepare your cohabitation agreement for you. As both parties will obtain independent legal advice before signing the cohabitation agreement, the form of the cohabitation agreement will have to be agreed upon by both parties after having consulted with their separate lawyers. From our experience, cohabitation agreements that were prepared by the parties will require significant revisions prior to being ready to be signed.

Are Cohabitation Agreements Enforceable?

Cohabitation agreements will in most cases be enforceable.

To maximize the likelihood of your cohabitation agreement being enforceable you can obtain independent legal advice, exchange full financial disclosure prior to entering into the agreement, make sure that there is enough time for both parties to negotiate and consider the terms prior to signing, and make sure that neither party is subject to duress or undue influence.

Can a Cohabitation Agreement be Signed Remotely?

Yes.

The terms of a cohabitation agreement can be structured to allow for remote execution.

Can a Cohabitation Agreement Be Updated Later?

Provided that there is consent, and both parties are willing to obtain independent legal advice, the parties can change or update their cohabitation agreement at any time.

Typically a cohabitation agreement will contain a clause stating that the agreement can only be modified if it is in writing with both parties having independent legal advice regarding the changes.

What Happens if We Break Up Without a Cohabitation Agreement?

If you break up without a cohabitation agreement then your separation will be governed by the applicable law in Alberta for the issues of property division and spousal support, namely Alberta’s Family Property Act and Family Law Act (or Canada’s Divorce Act if you were subsequently married). Which, if any, law is applicable to your situation will also depend on whether you are adult interdependent partners under the Adult Interdependent Relationship Act.

If there are children involved, then the Family Law Act for unmarried couples or the Divorce Act for married couples will always be applicable for determining parenting and child support.

It is encouraged that you consult with a family lawyer to learn what laws are applicable to your circumstances.

Do You Represent Clients Outside of Edmonton?

Yes.

Although Helm Family Law LLP is located in Edmonton, we serve the Edmonton Metropolitan Region, Red Deer, and all of Northern Alberta.

We have many clients from Northern Alberta including underserved communities which may not have access to local lawyers.

Services

Divorce and Separation

Common Law Relationships

Property Division

Spousal Support

Child Support

Parenting

Family Agreements

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9452 51 Avenue, Building 3,

Suite 202

Edmonton, AB T6E 5A6

Telephone: 780-760-1388