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Does Having a Cohabitation Agreement Make Sense?

Monday 17th of April 2017 by Paul Mazzeo

More and more couples are choosing to live together before marriage. In fact, between 2006 and 2011, the number of common-law couples rose 13.9%, more than four times the 3.1% increase for married couples. Still, married couples still remain most common family structure despite the decrease in numbers over the years. There are a lot of misconceptions about cohabitating couples when it comes to the law and their rights, and even more when it comes to them separating.

 

Here are the most common misconceptions and factors to consider when deciding whether or not having a cohabitation agreement in place makes sense.

 

1. Provincial variances

Not all provinces treat common-law partnerships the same. For example, in British Columbia it was recently ruled that if a couple is living together for two years then they have the same rights as married couples. In Alberta, only couples living together for three or more years or has a child a child together and live together are considered common-law. In order for a couple to be considered common-law in Ontario or Manitoba, they must live together for three years or more, or one year with a child.

 

2. Spousal Support

Not always, but in some cases, it is possible that someone in a common-law union is awarded spousal support based on their circumstances. For example, if one party had to take care of a child or children and therefore forfeit a career it might justify spousal support. Also, in unique cases where one person was financially dependent upon the other regularly and would suffer financially from separating then they too might be granted spousal support. However, it’s important to know that granting spousal support at all in most common-law cases is not common.

 

3. Property & Division of Assets

In most provinces, because common-law couples aren’t considered married there is no matrimonial property, and therefore no legal rights to it. The only exception would be if there was a cohabitation agreement in place and in that agreement the property and assets are addressed. Otherwise, without a cohabitation agreement in place the law looks at how each party has contributed to the home. Maintaining the home or any improvements and renovations done are all considered as contributions. But there are variances across Canada because the legislation around common-law couples is different. British Columbia considers common-law couples married after two years of living together, whereas Quebec doesn’t acknowledge common-law couples at all. So in B.C. common-law couples have the same rights as married couples, whereas in Quebec, common-law couples are seen as common roommates and whatever one party owns, they keep.

 

If you are considering living together with someone before getting married or instead of getting married, it helps to know your rights. Cohabitation agreements, especially in Ontario, can help protect your rights and those of your partner’s in the event of a relationship ending, like financial assets, investments, debts, as well as property. It can also provide peace of mind especially for couples that just started living together and don’t meet the criteria necessary to be considered a common-law in the eyes of the law.

 

At Mazzeo Law we have helped many people prepare a cohabitation agreement to protect their rights and those of their partners. In order for an agreement to be finalized, each partner has to obtain his or her own lawyer. Give us a call or request a free consultation and one of our representatives will get back to you promptly to set up a meeting.

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