Breaking up is rarely easy, and when you’ve built a life together – assets, debts, maybe even pets – it can get complicated. If you and your partner in BC signed a cohabitation agreement, you likely did so to bring clarity and predictability to a potential separation. So, what actually happens to that agreement when the relationship ends?

Let’s break it down.

First, What IS a Cohabitation Agreement?

In British Columbia, under the Family Law Act (FLA), unmarried couples who live together in a marriage-like relationship for at least two years are generally treated the same as married couples when it comes to property division and debt upon separation. They are considered “spouses” for these purposes.
A cohabitation agreement is a legal contract signed by couples who are living together or plan to live together. It sets out how you’ll deal with various financial matters both during your relationship and, importantly, if you separate.

Common topics include:

• Property Division: How assets you brought into the relationship (excluded property) and assets acquired during the relationship (family property) will be divided.
• Debt Responsibility: How debts incurred before or during the relationship will be handled.
• Spousal Support: Whether spousal support will be paid by one partner to the other, and if so, for how long and how much (or if it’s waived entirely).
• Other Matters: Things like how household expenses are managed, or what happens to a shared pet.

So, You’ve Broken Up. Now What?

The good news is, if you have a valid cohabitation agreement, it should largely dictate how things unfold.

1. The Agreement is Your Roadmap: Your cohabitation agreement is the primary document guiding the division of your lives. You and your ex-partner will refer to its terms to determine:
   • Who gets what property: Does the agreement specify that certain assets remain separate? Does it outline a different split than the FLA’s default 50/50 for family property?
   • Who is responsible for which debts: The agreement should clarify this.
   • Spousal support obligations (if any): If your agreement addressed spousal support (e.g., a waiver or specific terms), those terms will generally apply.
     
2. Follow the Terms: The process involves implementing what you both previously agreed upon. This might mean selling a shared property and dividing the proceeds according to the agreement, one person buying out the other’s share, or simply each person keeping assets designated as their own.
   
3. What About Children? This is crucial: A cohabitation agreement cannot definitively pre-determine child custody (parenting arrangements), parenting time, or child support. While you might have outlined intentions, decisions about children are always made based on the “best interests of the child” at the time of separation. The Child Support Guidelines will determine child support amounts. Your agreement can’t override these fundamental principles.

Can a Cohabitation Agreement Be Challenged or Set Aside?

Yes, but it’s not automatic or easy. In BC, the Family Law Act allows a court to set aside an agreement (or parts of it) under certain circumstances. These include:

• Lack of Full Financial Disclosure: If one partner didn’t honestly disclose significant assets, property, or debts when the agreement was made.
  
• Undue Influence, Duress, or Unconscionability: If one partner was pressured, coerced, or taken advantage of when signing the agreement, or if the terms are grossly unfair.
  
• Lack of Independent Legal Advice (ILA): While not strictly mandatory for an agreement to be valid, if one or both parties didn’t receive ILA before signing, it can be a factor (among others) if the agreement is later challenged as being significantly unfair. Courts strongly prefer both parties to have ILA.
  
• Significant Unfairness: Under Section 93 of the FLA for property division, an agreement can be set aside if it was “significantly unfair” based on certain factors (like the duration of the relationship, or a party’s contribution to the career of the other). For spousal support waivers, Section 164 allows a court to set aside a waiver if, considering the circumstances at the time of the application, it would be “significantly unfair.”

What Happens if You Lived in a Marriage-Like Relationship Without an Agreement and Break Up?

If you lived together in a marriage-like relationship for two years or more and don’t have an agreement, the default provisions of BC’s Family Law Act will apply:

• Family Property & Debt: Property acquired by either spouse during the relationship (with some exceptions for “excluded property” like inheritances or gifts to one spouse) is generally considered family property and subject to a presumptive 50/50 division. The same goes for family debt.
  
• Spousal Support: One partner may be entitled to claim spousal support from the other.

This often leads to more negotiation, mediation, or potentially court proceedings to sort out, which can be more stressful and expensive.

Key Takeaways Upon Separation with a Cohabitation Agreement:

1. Locate and Review Your Agreement: Understand what you agreed to.
   
2. Communicate (If Possible): Discuss the terms with your ex-partner. If communication is difficult, consider a mediator.
   
3. Seek Legal Advice: Even with an agreement, it’s wise for both parties to consult with their own family lawyer. A lawyer can:
   • Explain your rights and obligations under the agreement.
   • Advise on the enforceability of the agreement.
   • Help you negotiate any ambiguities or unforeseen issues.
   • Assist with the formal steps of implementing the agreement (e.g., property transfers).
     
4. Formalize the Separation: Depending on your circumstances and the complexity of your assets, you might still want a formal Separation Agreement that confirms you’ve divided things according to your cohabitation agreement (or any agreed-upon variations).

A well-drafted cohabitation agreement, created with full disclosure and independent legal advice, is designed to make a difficult time like a breakup more straightforward and less contentious. It provides a clear path forward, allowing both of you to move on with greater certainty.

_________________________________________________________________________________________

Disclaimer: This blog post provides general information only and does not constitute legal advice. Laws, interpretations, and court practices can change. You should consult with a qualified BC family lawyer to discuss your specific situation and receive tailored legal advice regarding prenuptial or cohabitation agreements. Set up a free 15 minute call here.