This may sound like odd advice coming from a divorce lawyer, but I would advise any couple planning to move in together as common law partners to first consult with someone who is trained as a marriage therapist, because it is certainly a lot better to build a good solid relationship with the help of a professional rather than having to deal with the consequences of a separation. All relationships have their ups and downs and it is always a good idea to get some help along the way.
I would also say that, absolutely, it’s a good idea to have a lawyer draft a cohabitation agreement before living together. The agreement can be very specific about each person’s rights and obligations upon separation. Sometimes it will be a very comprehensive agreement that states “all of my assets are mine, all of your assets are yours, that neither one is going to make a claim against the other’s assets, and anything acquired together will be divided equally”.
Other times there is an agreement that protects one person’s particular asset from a claim by the other partner. The agreement depends on each couple’s circumstances and what they want occur should they separate.
In a cohabitation agreement, it is not possible to cover child custody and access because the court always has the right to determine these issues. You could stipulate that there would be no child support obligation even if someone becomes like a parent to the other person’s children or child, but a judge might say that an agreement to not pay child support is not in the best interests of the child and will set it aside. You may still be ordered to pay child support even though you agreed otherwise.
With respect to the division of property, you certainly can protect yourself from any claim. The courts are more likely to uphold an agreement regarding the division of property upon separation than they are to uphold an agreement regarding support or the children.
When it comes to spousal support, if there has been a waiver of spousal support, the judge may decide to disregard it unless both parties are financially independent. A careful crafting of any waiver or limitation of spousal support is essential for it to be upheld in court.
The advantage of having a cohabitation agreement is that it gives a clear indication of the rights and obligations that each party has if there is a separation, removing any ambiguity between them. It also minimizes the cost if there is a separation down the road because the parties can just go to that cohabitation agreement rather than having to go to court or negotiate a settlement.