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29

Cohabitation Agreement (Alberta): Part 1

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Cohabitation Agreements in Alberta

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to a cohabitation agreement in Alberta, you should seek professional assistance.

This is the first of a series of blog posts about cohabitation agreements in Alberta, Canada.

What is a Cohabitation Agreement?

A Cohabitation Agreement is a written contract between two people who are cohabiting or intend to cohabit and who are not married. A Cohabitation Agreement can deal with the parties’ respective rights and obligations during and after their cohabitation (or on death) and can deal with things like: ownership or division of property and spousal support obligations. Finally worth mentioning is that a Cohabitation Agreement does not need to deal with all rights and obligations concerning the relationship: it can only be concerned with one asset (e.g. a house) or one obligation (e.g. support to one party upon termination).

When are they used?

Cohabitation Agreements are used by cohabiting persons and common law spouses when they are or intend to cohabit with each other and want certainty, predictability and control their financial affairs in case the relationship breaks down.

What if I don’t have one?

Support

If you do not have a Cohabitation Agreement, then your rights and interests could be affected during and after cohabitation. To begin, under the Alberta Family Law Act, an “adult interdependent partner” may apply to the court for SUPPORT from the other adult interdependent partner: section 57(1). So who qualifies as an “adult interdependent partner”? Well the Adult Interdependent Relationships Act defines a person as an “adult interdependent partner” of another person if they lived with the other person in a “relationship of interdependence”:

  • for a continuous period of at least 3 years; or
  • of some permanence if there is a child of the relationship by birth or adoption.

A person can also be an “adult interdependent partner” of another person if they enter into an adult interdependent partner agreement (as per the Regulations) with the other person: section 3. A “relationship of interdependence” means a relationship outside marriage in which any two persons share one another’s lives, are emotionally committed to one another, and function as economic and domestic unit: section 1(1). To determine whether a couple function as an “economic and domestic unit”, all of the circumstances of the relationship must be taken into account – such as (section 1(2) and Bowers v. Wolfram, [2008] A.J. No. 1436):

  • whether or not the persons have a CONJUGAL RELATIONSHIP (“conjugal” means relating to marriage or the relationship between husband and wife AND it MAY or MAY NOT include the following: having a child together, having sex together, living in the same residence, emotion and financial support of the other spouse, and some degree of permanence);
  • the degree of exclusivity of the relationship (e.g. relationships with others, one night stands, etc.);
  • the conduct and habits of the persons in respect of household activities and living arrangements (e.g. providing domestic services, sleeping in the same bed, having sex together);
  • the degree to which the persons hold themselves out to others as an economic and domestic unit;
  • the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another (i.e. did they enter into any kind of agreement outlining the profile of their relationship?);
  • the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well‑being;
  • the degree of financial dependence or interdependence and any arrangements for financial support between the persons;
  • the care and support of children; and
  • the ownership, use and acquisition of property.

A “relationship of interdependence” doesn’t include the situation where one person is giving domestic support and personal care for a fee or on behalf of another person or organization (e.g. government): section 4. Now, although an “adult interdependent partner” can apply to court to force their partner to pay support, they may WAIVE that statutory right through a written agreement (often referred to as a Cohabitation Agreement). Basically, a Cohabitation Agreement (properly drafted and entered into) can require an adult interdependent partner to release the other partner from liability for support under the Family Law Act. So that takes care of support.

Bench held the following at paragraph 55: “While an unmarried couple chooses not to use the matrimonial legislation, rights in equity remain. Unmarried partners may make a claim for a share of the property through a claim in unjust enrichment with a remedy in money or property: Kopr Re v. Kopr, 2009 ABQB 93, at para. 45 citing Panara v. Di Ascenzo, 2005 ABCA 47, 361 A.R. 382 at para. 22, referring to Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, at para. 55, [2002] 4 S.C.R. 325. The bottom line is that parties who are living together in a conjugal relationship (even if they are not “adult interdependent partners” under that Act) can clarify their rights and obligations to their property through a Cohabitation Agreement. Specifically, the Cohabitation Agreement can divide property according to legal ownership (i.e. what’s mine is mine; what’s yours is yours), specify how gifts are made (e.g. in writing), and require the parties to release the other party from unjust enrichment claims (discussed below).

In the next blog, I’ll discuss how a common law relationship (“adult interpersonal relationship”) can create rights and obligations with respect to the home and ownership and division of property.

By the way, if you’re looking for a Cohabitation Agreement in Alberta that either terminates upon marriage or survives marriage (and becomes a prenuptial agreement or marriage contract), then you’ve come to the right place:

Cohabitation Agreement – Terminates Upon Marriage

This legal form can be used by non-married couples in Alberta who wish to avoid creating obligations through their cohabiting (i.e. living together) with each other. This particular cohabitation agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours). This cohabitation agreement terminates when the parties get married to each other. If you want the cohabitation agreement to continue past marriage (i.e. continue to be valid and enforceable past marriage), then you can check out the cohabitation agreement below:

Cohabitation Agreement – Continues Past Marriage

This legal form can be used by non-married couples in Alberta who wish to avoid creating obligations through their cohabiting (i.e. living together) and their marriage to each other. It essentially becomes a Prenuptial Agreement or Marriage Contract when the parties marry each other. This particular cohabitation agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours). This cohabitation agreement continues to be valid and enforceable past marriage.

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