If you and your spouse are in a de facto union, the rules on family patrimony do not apply. As a result, you have no obligation to divide your property into two equal shares if you decide to separate.
However, you can ensure that your property will be divided fairly by setting out the rules in a cohabitation agreement or separation agreement.
A cohabitation agreement is a written agreement between two people who live together in a de facto union. It may also be referred to as a de facto union agreement or an agreement between de facto spouses. It will help you in many of the decisions you have to make concerning, for example:
- how you will share your day-to-day responsibilities during the time you live together;
- whether one spouse will be able to represent the other in some situations (power of attorney);
- the measures that will apply if you separate or if one of you dies, for example with respect to the division of your property, including the family home, the involvement of a family mediator, the division of the employment earnings registered under the Québec Pension Plan during your time together, and the payment of support or a compensatory allowance by one spouse to the other.
Provided you comply with the law, you and your de facto spouse can adapt the agreement to your specific needs. Each spouse will have rights and obligations, which can be similar to those of a married couple if you so wish.
You and your de facto spouse can include an inventory of your personal property and your debts in the agreement.
A cohabitation agreement does not replace:
- a will;
- a mandate given in anticipation of incapacity.
Signing a cohabitation agreement with your de facto spouse
To sign a cohabitation agreement with your de facto spouse, you must either:
- draft it and sign it with your spouse in the presence of two witnesses; o
- have it drawn up by a notary or lawyer.
Your cohabitation agreement takes effect as soon as you and your de facto spouse have signed it.
Amending a cohabitation agreement
To amend a cohabitation agreement, you and your de facto spouse must either:
- draft and sign a new cohabitation agreement together, in the presence of two witnesses or not; or
- have it drawn up by a notary or advocate.
One spouse acting alone cannot amend the cohabitation agreement.
Cancelling a cohabitation agreement
To cancel a cohabitation agreement when you separate, you must:
- obtain your spouse's consent that your cohabitation agreement will no longer apply;
- sign an agreement with your spouse stating that you both undertake not to apply your cohabitation agreement.
Sharing of responsibilities
In your cohabitation agreement, you and your de facto spouse can specify how much each of you will pay towards various items such as:
- your hypothec or rent payments;
- your grocery shopping;
- your electricity bill.
You can also specify how you will split your debts if you separate.
You and your de facto spouse can include a power of attorney in your cohabitation agreement, authorizing each of you to represent the other:
- in an urgent decision, such as consenting to medical care if the other spouse is unable to do so;
- to administer the other spouse's property.
However, you may prefer to sign a separate document for this purpose. This is the ideal solution in certain cases, for example if:
- you want to give your spouse specific powers to administer your property;
- you do not want to have to show your cohabitation agreement to every person who needs to check your power to represent your spouse.
Gifts between living persons
If you wish to give a gift or money to your spouse during your lifetime, you may specify this in your cohabitation agreement. For example, you may promise in the agreement to give your spouse:
- a car, sofa, or valuable piece of jewelry.
To specify a gift in your cohabitation agreement, you must:
- be in possession of the item or money when you sign the agreement;
- give the gift to your spouse as soon as the agreement is signed.
Support payments to a former de facto spouse
In general, when a de facto relationship ends, neither spouse has any obligations toward the other, however long you have been together.
This means that even if you are in financial difficulty, you will not be able to demand a support payment from your former de facto spouse, whatever his or her income and however long your were together.
However, you and your de facto spouse may specify in your cohabitation agreement that, if you separate, one will pay a sum of money to the other. The payment can be made in one or more instalments, and may be considered as a support payment or compensatory allowance made to a former de facto spouse.
Partition of registered earnings under the Québec Pension Plan
In your agreement, you and your de facto spouse can agree to partition the earnings registered under the Québec Pension Plan by one or both spouses while you were together.
Before making a decision on this subject, you can apply for a simulated partition of employment earnings .
Last update: April 6, 2023