Cohabitation agreement between de facto spouses: Why would I need one ?

Did you know that Quebec is the only province in Canada that does not provide any measure enabling de facto spouses to claim before Courts alimony for themselves?

But what is a cohabitation agreement? Well, as the name suggests, this is a contract between two (2) persons of the same sex or not living together without being married by which they obligate themselves reciprocally towards each other. No minimum period of cohabitation is required. Partners can provide whatever they want unless it is prohibited by law or contrary to public policy. The consent of each party must also be free and informed and the two (2) partners must be competent to consent.

Now, the answer to the question: Why would I need an agreement between de facto spouses? Many circumstances can lead to the drafting of a cohabitation agreement. Here are some examples:

  • De Facto spouses do not want to marry but wish to foresee the consequences of their separation (ex .: alimony between de facto spouses, who will have the right to use the residence until the sale, how common goods will be divided, etc.);
  • One de facto spouse move with the other partner who already has a residence but wishes, in case of separation, compensation for his contribution in the couple, even though he does not owns the residence;
  • The spouses are parents of children and wish to prescribe the manner in custody and support payments in case of separation. It is important to note here that the Court still has the power to intervene in the event that one spouse seize the Court for this purpose;
  • The distribution of family expenses during the relationship;
  • Establish assets and debts of each de facto spouse at a given date;
  • Registera loan that a spouse has made to the other one and the repayment terms or how will the reimbursement of common liabilities to separation be made;
  • The sharing of eligible earnings under the Québec Pension Plan (QPP) or any other supplemental retirement plan;
  • Provide compensation in the event of separation when a spouse has decided to stay home and stop working to take care of children;
  • Establish compensation for the spouse who worked in the company of the other spouse without being paid;
  • Foresee what will happen to the division of assets upon separation when a spouse is bankrupt, and that the majority of assets are registered in the name of the other.

The agreement between de facto spouses do not have to necessarily be written by a lawyer or notary. However, it is strongly recommended to seek legal advice so you know your rights and avoiding unpleasant surprises when separating.

But what will happen in the case of a disagreement as to the application of the Convention after the separation occurs? Partners can initially attempt to settle all through mediation. If this does not work, they will therefore apply to the Tribunal for this purpose so that contentious issues are decided. However, it is good to remember that the drafting of the agreement’s main objective is to avoid going to the Courts.

Text written by Me Roxane Trudel Pigeon, Associated Lawyer