What is a Cohabitation Agreement?

A Cohabitation Agreement (also known as a Prenuptial Agreement) is a contract executed by unmarried couples, setting out each party’s respective rights and obligations in the event of a relationship (or marriage) breakdown. Most often, Cohabitation / Prenuptial Agreements will address the issues of property and spousal support. Parties are also free to execute a Post-nuptial Agreement after the marriage has already taken place, provided there is an agreement as to the terms.

The most obvious case for a Cohabitation / Prenuptial Agreement is when one party has significantly more assets than the other. However, even if you and your partner are young and of modest means, it is still wise to consult with a family law lawyer about the implications of relationship/marriage breakdown in the years to come (as chances are, your wealth will increase).

Cohabitation Agreements are gaining increased popularity in light of the new Family Property Act that came into effect on January 1, 2020 in Alberta. Under the previous Matrimonial Property Act in Alberta, only married individuals enjoyed presumptive rights to one another’s property, and unmarried individuals were left having to bring an expensive, complicated action in unjust enrichment. Now, under the new Family Property Act, adult interdependent partners enjoy the same presumptive proprietary rights as married couples. Accordingly, now more than ever, it is crucial to speak with a family law lawyer to educate yourself on the implications of this recent change and what it means for you.

Cohabitation/Prenuptial Agreements are private contracts, so provided there is a consensus between you and your partner on the terms, you are free to deviate from the Family Property Act, the Spousal Support Guidelines, and any other relevant legislation as much or as little as you want. Every agreement is different, and will depend on you and your partner’s goals and individual circumstances. Cohabitation/Prenuptial Agreements require what is called independent legal advice, meaning that in order for the Agreement to be valid and ensure that your respective interests are protected, you and your partner are both required to meet with separate lawyers. Although the process of executing a Cohabitation/Prenuptial Agreement may seem daunting, your lawyer will be there to help you, make suggestions, answer questions, and provide you with advice.

Contact the lawyers at Kirk Montoute Dawson LLP today for more information about Prenuptial / Cohabitation Agreements.

Written by Suzanne Fleming

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