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Complexities of Cohabitation Agreements

By | - November 21, 2023

Steve Benmor is a recognized divorce lawyer, family mediator, arbitrator, speaker, writer and educator. Mr. Benmor has worked as lead counsel in many divorce trials, held many leadership positions in the legal community and has been regularly interviewed on television, radio and in newspapers as an expert in Family Law.

Lending rates, equity markets and real estate values are not as big a risk to a person’s net worth as is the break-up of their relationship or marriage.  Sharing a person’s net worth, after deducting large legal bills and court costs are the greatest risk to personal wealth.  

Cohabitation Agreements have become a standard part of modern relationships, offering couples a mechanism to address financial matters before sharing a home and a life. 

However, as with any legal contract, such agreements come with their own set of challenges, each demanding careful consideration to ensure validity, fairness and enforceability.

One crucial challenge with Cohabitation Agreements is timing. 

Couples must determine the optimal moment to broach the subject and initiate discussions. Bringing up such an agreement too close to the cohabitation date can lead to heightened emotions and rushed decision-making, potentially compromising the fairness and equitability of the agreement. 

Determining when to initiate the the process is critical. Couples should allow sufficient time for careful consideration, negotiation and revision. A last-minute rush may undermine the thoughtful and deliberate nature of the agreement, potentially leading to legal complications in the future.

A common question that often arises is whether both parties participate in the crafting of the agreement, as opposed to one spouse demanding it and dictating its terms. Collaborating, negotiating and balancing of the terms of the Cohabitation Agreement, combined with independent legal and financial disclosure often strengthens the document’s validity. This ensures that both individuals fully understand the implications of the agreement, fostering an environment of fairness and transparency.  

Procedural fairness involves guaranteeing that both spouses willingly enter into the agreement with a clear understanding of its terms. The presence of witnesses for the signing of the Cohabitation Agreement is mandatory in Ontario to ensure procedural fairness.  

Substantive fairness, on the other hand, necessitates that the content of the Cohabitation Agreement is just and reasonable. If either spouse challenges the agreement, a judge may scrutinize it to ensure that neither spouse is left unfairly disadvantaged.

In conclusion, while Cohabitation Agreements serve as a valuable tool for couples to outline their future financial arrangements and protect their respective interests, the challenges associated with timing, legal representation, fairness, and jurisdictional variations should not be underestimated. Taking a proactive and informed approach, seeking legal advice, and allowing ample time for thoughtful consideration are essential steps in addressing these challenges and laying the foundation for a strong and legally sound Cohabitation Agreement.

If you are interested in a Cohabitation Agreement that reflects your unique financial relationship, protects your interests, and is legally binding, visit the following link https://benmor.com/mediation-more/ or click the link below to obtain your Cohabitation Agreement, expertly prepared by Steve Benmor, a Senior Ontario Family Law Lawyer.

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