Cohabitation contract between de facto spouses
Couples who live in a de facto union can make a cohabitation contract to define the obligations of each during the common life and provide, for example, what will happen to property and children in the event of separation. The cohabitation contract is also called “cohabitation contract”, “de facto union contract”, “contract between de facto spouses” or “cohabitation agreement”.
The usefulness of the cohabitation contract
De facto spouses do not have the same rights as married or civil union couples. Thus, the cohabitation contract allows them to define themselves the rights they want to give themselves. All kinds of agreements between de facto spouses can be included in the cohabitation contract as long as they do not contravene the law.
The cohabitation contract allows de facto spouses, among other things, to agree on:
The sharing of responsibilities and the contributions of each during the common life;
The assets and debts that each has at the beginning of the life together;
How to share common property in the event of a breakup;
The terms of repayment of debts in the event of separation;
The payment of a sum of money, such as alimony, to one of the spouses in the event of separation. The amount can be paid in full once or in instalments or by giving property to the spouse;
The terms of review of the agreement in the event of changes in the situation of a spouse after separation.
Of course, the contract may contain certain points only.
Example
Mélanie quit her job to move to another city with her common-law partner, Sébastien. Mélanie and Sébastien make a cohabitation contract in which they provide that in the event of separation, Sébastien undertakes to pay compensation of $10,000 to Mélanie for her loss of income since she resigned from her job to live with her. Sebastian.
Example
Paul does not want to get married. He is a successful businessman and owns a lot of property. He has lived for 5 years with his boyfriend, Gilles, who does not have a very high income. Paul and Gilles decide to make a cohabitation agreement to allow Gilles to maintain a certain standard of living in the event of separation. The contract provides that Gilles can live all his life in one of Paul's residences and receive alimony of $15,000 per year until his death or until Gilles cohabits with another person.
Make a cohabitation contract
To make a cohabitation contract, as with any contract, de facto spouses must:
Be of legel age and not be under guardianship or protection mandate
Free and informed consent
The cohabitation contract can be: made at any time by the spouses;
verbal, but a written contract is more useful if there is a problem to prove it;
modified at any time by the de facto spouses. However, they must agree on the changes to be made.
A cohabitation contract is often a document tailor-made for the common-law couple. Its drafting is often complex and must be faithful to the wishes of the spouses. Consequently, it is recommended to consult a notary or a lawyer for the preparation and drafting of this document. The professional can be useful in order not to forget any essential element, advise the couple on aspects which they had perhaps not thought of, ensure that the agreements are well drafted and comply with the law and avoid, as much as possible, the emergence of problematic situations.
Elements that the cohabitation contract cannot include
Common-law spouses can make all kinds of agreements within themselves as long as they respect the law. Here are some examples of cases where the Court has ruled that clauses were not valid:
donations in a contract that is not notarized. Gifts must be made in a notarized contract, unless the donated property is given and owned immediately by the spouse;
the transfer of property in the event of the death of a spouse. Only a will can allow this;
decisions contrary to the best interests of their children;
It's almost impossible to list everything that might violate the law. This is why it is recommended to call on a lawyer or a notary for the preparation or validation of the cohabitation contract between the spouses.
Claiming a cohabitation contract
A contract is a contract. Spouses are therefore bound by their agreements. However, when the de facto spouses do not agree on an element of the cohabitation contract or refuse to respect the cohabitation contract, they can make a request to the courts. Common-law spouses with children can usually benefit from free mediation sessions.