A common-law (also called de facto) relationship is a precarious situation because it creates no rights, offers no protection and is not governed by any law. The protections that cover civil union and married spouses under the Civil Code of Québec do not apply to common-law spouses. For this reason, it is strongly recommended that all common-law partners, whether of the opposite or same sex, draft a cohabitation contract. You will feel more secure in the event of a separation, knowing that issues like the division of furniture and other possessions have already been taken care of in the contract.

The main purpose of cohabitation contracts is to protect both spouses to a certain degree. In some cases, it is also meant to compensate one of them for any additional contributions made at the time the relationship was formed.

With some exceptions, you can incorporate any agreement between spouses into a cohabitation contract. Verbal agreements are as valid as written ones – but they are more difficult to prove and less likely to be enforced.

Usually, a cohabitation contract lists the items owned by each spouse before they started living common-law, and the things they acquired during this time. It is advisable to keep the bills for items acquired during cohabitation which are included in the contract. This helps avoid complications if the property is divided later on.

Cohabitation contracts can specify the distribution of financial and household responsibilities; this is especially useful if one of the common-law spouses stays at home. Here again, it is a good idea to keep receipts or written proof of the debts that might be covered by the cohabitation contract.

Cohabitation contracts can include gifts of property. In order for such a gift to be valid, you must be able to give the gift to your partner immediately. Future gifts cannot be included in the contract. Contracts can also provide for support and the division of assets should there be a separation.

Note that the law makes no distinction between children born to common-law partners and children born to couples in a civil union or marriage, as far as child support and custody are concerned. We invite you to consult the section of La loi vos droits dedicated to Parents for more information.

There is no article in the Civil Code of Québec that specifically governs common-law relationships. However, some public federal and provincial statutes grant the same benefits or obligations to de facto spouses as to married or civil union spouses (for example, laws related to retirement plans, automobile insurance, the Régie des rentes, and taxation). In light of the diversity of our legislative system, the rules and conditions that apply to common-law partners differ from one law to the next. It would be wise to consult these statutes in order to be better informed.

If there is a disagreement that cannot be resolved, you must go to court to enforce your cohabitation contract. Written agreements concluded when entering the common-law relationship must be confirmed in court. Alas, a legal battle is the unfortunate result!

If at the time of separation, one partner believes he has made a greater contribution in terms of money or household tasks than the other partner during the cohabitation, he can sue for “unjust enrichment” – seeking compensation for the additional support provided to the other partner.

Couples with children – whether married, in a civil union or common-law – are covered by family mediation laws. Did you know that if you are separating and you have children, you are entitled to the free services of an accredited mediator? This service is offered to help you and your ex-spouse negotiate child custody, support and other consequences of a separation, divorce or dissolution. Mediation is even available when an ex-spouse has asked to change an existing judgment. We invite you to consult the Infosheet entitled Free family mediation to learn more.

You are not legally recognized as a couple, so if you want additional protection you must sign other legal documents. Here are a few examples:

• A mandate given in anticipation of incapacity
  This document is helpful for appointing a person to look after you and your assets if you become incapacitated (see the Infosheet entitled Mandates given in anticipation of incapacity).
  
  
• A will
  This is the only legal document by which you can indicate your wishes upon death (see the Infosheet entitled Wills).
  
  
• A co-ownership deed of sale
  If you and your partner buy a building or house together, it is strongly recommended that you buy the property in divided co-ownership, and that you sign a contract proving this in front of a notary. If the downpayments made by each partner are unequal, the contract must mention this so that in the event of a separation the partner who contributed the greater amount will get back the right share. (see the Infosheet entitled De facto spouses and undivided co-ownership).
  
  
• Power of attorney
  A power of attorney or mandate is a contract in which one person chooses another to represent her in the making of a legal act. So, if you would like to make it possible for your partner to do certain financial transactions in your place for example, you can do so by creating a power of attorney.

No. At the same time, a professional can help you identify your specific needs and clarify what you wish to include in the cohabitation contract. A professional will ensure that nothing essential is forgotten, will advise you on aspects you may have overlooked and because he is experienced in this area, will help you to avoid problems that could arise.

No. Marriages and civil unions create a family patrimony whereas common-law relationships do not (See the Infosheet entitled Family patrimony). In the event of separation or death, couples in a marriage or civil union will split the family patrimony, notably built-up earnings in a retirement plan or RRSP. There is no such protection for people who are living common-law: legally you are owed nothing.

But some organizations and employers (under certain conditions) offer common-law spouses the possibility of sharing built-up earnings in a retirement plan or RRSP in the event of separation or death, provided the common-law spouses have made previous arrangements.

As with any civil contract, cohabitation contracts must abide by certain rules. They are valid if both partners are legally capable of entering into a contract (which excludes minors), if consent is legally given and if the contract object is legal. For example, a supposed cohabitation contract whereby one partner must provide sexual services would be invalid.

Gifts in anticipation of death or of future property are not permitted because they are only allowed in marriage or civil union contracts. Don’t forget though, that a cohabitation contract can still contain gifts (see above).

Lastly, all clauses in a cohabitation contract dealing with parental authority, child custody, access and support are invalid because these issues are assessed and dealt with upon separation according to the law.

Yes. Depending on the circumstances or events, you might decide that it is a good idea to change certain parts of your cohabitation contract. This is possible, as long as both spouses agree of course. You probably should avoid making verbal agreements, because they are much harder to prove. It is suggested that you put the agreement in writing, setting out all your rights and obligations, and sign it before a notary or lawyer.