Are You in a Common Law Relationship?
If you are in a common law relationship (living together with someone in a conjugal relationship), then you can enter into a prenup. This kind of prenup has a special name – a cohabitation agreement. A cohabitation agreement works the same way as a prenup. They are different from prenups, as common law couples have different family law rights than married couples, but for most practical purposes, they are the same as prenups, and any discussion about prenups will equally apply to cohabitation agreements.
Why Get a Cohabitation Agreement?
The law relating to common law relationships in Canada is a mess. Unlike for married couples where there are precise rules for how property is divided if a relationship ends, no such thing exists for common law couples. For instance, you and your partner may be equally sharing the cost of a home that is in your partner’s name. If you were married, the house would be shared equally. If you are unmarried, there is an automatic presumption that the house belongs to your partner, as your partner’s name is on the home. To get a share of the home, you must rely on a complicated and expensive legal claim known as unjust enrichment.
It is difficult to know in advance, even for an experienced lawyer, what the result of a claim for unjust enrichment will be. This makes these sorts of cases difficult to settle amicably, which further increases legal fees. You may want to avoid this, and share property equally as if you were married. Or not share property at all. Or share some property.
Many people are unaware that cohabiting couples do not have the same legal rights to property division as married couples. As well, many people are unaware that cohabiting couples have a right to spousal support – in Ontario, after 3 years of cohabitation (or 1 year if you have a child together), it is possible for one partner to claim spousal support from the other partner.
When to Get a Cohabitation Agreement?
The best time to get a cohabitation agreement is before you move in together or have a child together. Obviously, this is not always possible or practical, but generally, the sooner the better.
Note that you can enter into a cohabitation agreement at any time – even if you and your partner have lived together for many years.
What if We Marry?
If you marry, your cohabitation agreement continues in effect. There is no need to do anything special to ensure that this occurs.
You’re Invited to Call or E-Mail!
If you’re considering a cohabitation agreement — or have already made your decision — you’re invited to call or email us. We’ll explain for free how you can protect your assets and plan your estate. You can call us toll-free at 855-PRENUP-4 or email us using our contact form here. We can help you anywhere in Ontario, including Ottawa, Toronto, Mississauga, Brampton, Hamilton, London, Markham, and Vaughn.