Are you currently in a common-law relationship and looking to draw up a cohabitation contract? We’re here to help.
While many questions can be answered with the help of the guides, sample letters and forms in our legal toolkit, an independent jurist affiliated with PSP Legal will always be happy to help you by answering any questions you may have.
Of course, if you prefer to have an experienced practitioner take charge of your situation and intervene directly and quickly on your behalf, you can also request that one of the independent jurists affiliated with PSP Legal represent you by clicking here.
What is a cohabitation contract between de facto spouses?
A cohabitation contract is a civil law contract between two spouses that sets out various clauses applicable during the union and in the event of separation, notably to provide in advance for the division of property.
The purpose of a cohabitation contract
De facto spouses do not have the same rights as spouses in a civil union. Under the Civil Code of Québec, they are not entitled to protection of the family residence, division of the family patrimony, compensatory allowance or alimony between former spouses. They may therefore decide to enter into a cohabitation contract to protect themselves and avoid excessive economic imbalance upon separation.
Definition of de facto union
Since there is no uniform definition of de facto union, it is generally considered that two people living under the same roof for at least 12 months without interruption while being in a conjugal relationship are de facto spouses. In addition, persons in a conjugal relationship living together with a child may be considered de facto spouses, regardless of the length of time they have lived together.
Validity of a cohabitation contract
A cohabitation contract can be signed at any time during the union. Since the cohabitation contract is a civil contract between two parties, it must respect public policy. As such, it cannot contain any clause that goes against the law. In addition, it must have been drawn up by two spouses of full age and capacity, and they must give their free and informed consent to the contract. The contract may be drawn up in various ways, such as by notarial deed or in the presence of a witness.
However, if the contract contains an inter vivos gift clause, it must be drawn up before a notary. The cohabitation contract can also be concluded verbally. However, it may be more difficult to prove its content in the event of a dispute. It is therefore advisable to keep a written record of the agreement to facilitate proof, should the need arise.
It is possible for the parties to modify their agreements. However, these modifications must be approved by both parties, since the contract cannot be modified unilaterally. Based on this principle, both spouses could also agree not to apply the contract they have signed.
The cohabitation contract will give rise to civil obligations between the de facto spouses. Consequently, should one of the spouses fail to meet his or her obligations, it will be possible to go to court to enforce the contract.
Content of the cohabitation contract
The cohabitation contract may include clauses applicable during the union, such as the rights and obligations of each spouse, the inventory of property owned by each spouse prior to the union, the division of responsibilities and the situation in the event of the birth or adoption of a child.
As previously mentioned, the cohabitation contract may also include clauses applicable in the event of separation, making it a good idea to sign such a contract. Spouses may decide to share all or part of the family patrimony. Indeed, since they are not subject to the family patrimony, they can decide to adopt it in its entirety, but also to modify it as they see fit, provided this respects public order. Under the terms of the above, the spouses could also subscribe to a matrimonial regime such as partnership of acquests, making the necessary changes as they see fit. The cohabitation contract may also include a severance clause. As de facto spouses are not required by the Civil Code of Québec to pay alimony to former spouses, they may decide to include it in their cohabitation contract. Other specific clauses could also be added, such as the sharing of pension plans, the sharing of the family residence, etc. In short, it’s up to de facto spouses to draw up their own cohabitation contract that reflects their wishes.
Contract of cohabitation: Special rules for de facto spouses
There are rules specific to de facto spouses, mainly relating to the cohabitation contract.
Cohabitation contract and child support
First of all, it is not necessary to include a clause relating to child support. In fact, the obligation to provide child support also applies to de facto spouses under articles 585 et seq. of the Civil Code of Québec. If child support is provided for in the cohabitation agreement, it must be in the best interests of the child.
Cohabitation contract and will
Some spouses may decide to include clauses in the cohabitation contract providing for the transfer of assets to the surviving spouse upon the death of one spouse. However, the cohabitation contract cannot replace a will. Thus, if the deceased spouse did not make a will, or if he or she did not name the surviving spouse as heir in the will, the surviving spouse cannot be included in the estate, even if the cohabitation contract so provides.
How we can help
Our legal toolkit includes a variety of online resources and links to templates and guides to help you better understand your obligations.
However, should the Legal Toolkit prove insufficient in your situation, you can obtain additional assistance by speaking with one of PSP Legal’s affiliated jurists:
Of course, if you prefer to have an experienced practitioner handle your situation, you can always request that one of the independent jurists affiliated with PSP Legal intervene on your behalf by clicking here. He or she will then be able to intervene directly and rapidly on your behalf by:
- Preparing, negotiating and drafting applications, procedures or any other legal documents related to your situation;
- Assisting and advising you on your legal rights and obligations;
- Representing you before the courts when legal action is taken;
- Guiding you through the choices available to you, leading to a fair and satisfactory solution.
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