Written Agreements Between Common-Law Partners

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Common-law couples are officially known in Quebec law as "de facto" couples. 

These couples can create a written agreement called a contract to make clear the obligations of each person while they are in a relationship. The contract can also say what would happen if they separate. For example, the contract could deal with the division of property and parenting arrangements after separation.

Purpose of a Contract Between Common-Law Partners

Common-law couples don't have the same rights under the law as married or civil-union couples.  But with a written contract, they can set out the rights they want to give themselves. They can agree on a wide range of things in a contract, as long as none of it goes against the law.

Here are some examples of what common-law couples can include in a contract:

  • shared responsibilities and contribution of each spouse while they live together
  • child custody and child support, and visiting rights for the parent who doesn't have custody, as long as these agreements are in the best interests of the children (A court can always review these agreements depending on the circumstances.)
  • a list of property and debts of each person before they started living together
  • how the property will be divided if the partners separate
  • how debts will be repaid if the partners separate
  • if the couple separates, payment of money, such as support payments, to one person (Payments can be made in one lump sum, in regular payments or by giving property to one person.)
  • sharing of allowable "earnings" under the Qubec Pension Plan (QPP) as determined by Retraite Québec or by a supplemental pension plan
  • how the contract can be changed if the situation of the partners changes after they separate

Of course, the contract can deal with all or just some of these issues. 

Example 1

Melanie quit her job to move to another city with her common-law partner, Sebastian. Melanie and Sebastian sign a contract. The contract says that if they separate, Sebastian will pay Melanie $10,000 to make up for the income she lost by quitting her job to live with Sebastian.

Example 2

Paul doesn't want to get married. He is a successful businessman, and has a lot of property and investments. He has been living with his boyfriend Grant for five years. Grant's income is not very high. Paul and Grant decide to sign a contract so that Grant can keep up a certain lifestyle if they separate. The contract says that Grant can spend the rest of his life in one of Paul's houses and receive yearly support payments of $15,000 for the rest of his life, or until Grant moves in with someone else.

Making the Contract

To make this kind of contract (as for any other kind of contract), the partners must meet these requirements:

  • be at least 18 years old
  • not declared incapable
  • freely agree to the contract with an understanding of all the consequences

The contract can be signed by the partners at any time. It can be verbal, but a written contract provides proof of what the agreement says if there's a problem. The contract can be changed at any time, as long as both partners agree to the changes.

This kind of contract must often be tailor-made to fit the situation of each couple. It can be complicated to write, and it must reflect the couple's wishes. Therefore, it can be a good idea to consult a notary or a lawyer if you plan to sign this kind of contract. A notary or lawyer can make sure you include the most important points, suggest points you forgot, and make sure the contract is well written, doesn't go against the law and, as far as possible, that it won't cause problems later on.

Things the Contract Cannot Include

Common-law couples can enter into all kinds of agreements as long as they don't go against the law. Here are some examples of things the courts have decided are not valid because they go against the law:

  • gifts in a contract that was not notarized (Gifts must be made through a notarized contract, unless the property is delivered immediately into the possession of the person receiving the gift.)
  • transfer of property to one of the partners after the other partners dies (This can only be done through a will.) 
  • decisions not in the best interests of the children
  • a statement that does not respect one of the partner's basic rights, such as a statement saying that a partner cannot practise her religion in front of the children

It is almost impossible to list everything that is illegal. For this reason, it is a good idea to contact a lawyer or notary to prepare or review your contract.

Enforcing the Contract

A contract is a contract: people must respect any agreement they enter into. However, if the common-law partners disagree on something in the contract, or if they refuse to respect it, they can go to court to settle their disagreement.

If common-law couples who have children break up, they must attend an information session on parenting and mediation before going before a judge. They are also entitled to free mediation sessions

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.

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