Cohabitation Agreements Among Older Common Law Couples

Common law relationships are probably the fastest growing style of relationships in Canada. It’s very common for people to live together before marriage or instead of marriage, and now we’re seeing an increase in older common law couples too.

These are typically people who have been married, they have had children and maybe their spouse has died or they separated after many years of marriage. They have a substantial asset base and then they get into a new relationship and decide to live together. Often it’s their children who urge them to consult a lawyer to get a cohabitation agreement in place because they are worried that mom’s or dad’s assets might have to be shared with the new common law partner. The couple will come in and will try to negotiate a cohabitation agreement to protect their assets, should the common law relationship fail down the road, or in the case of death.

Sometimes the cohabitation agreement will stipulate that the other party has a claim to a certain percentage of the wealthier person’s assets after a certain period of time. So for example, maybe 20 percent of the assets will be included after they have been together for five years, and if they have been together for more than 7 years, that goes up to 35 percent. If they have been together for more than 10 years, then it’s 50 percent. These agreements are more likely to be upheld by the court because they are seen as being a compromise. It’s not one sided because there is clearly an intention to share proportionally certain assets over time. It is more likely to be upheld in court because the courts are more comfortable respecting that approach, as compared to an agreement where someone keeps all of their assets and the other person gets nothing.

Such an agreement, especially between partners who are well established in terms of property and assets, really creates some clarity and basic understanding between the two people. They know where they both stand should they separate, and their adult children feel more comfortable about the situation too.


If you, or someone you care about, is dealing with family law issues in the Barrie, Ontario Region, contact Galbraith Family Law for a consultation.


This article is taken from an interview with Brian Galbraith, Family Lawyer with Galbraith Family Law, a Barrie Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.