The old song “Breaking up is hard to do” accurately summarizes what is a nearly universal experience. Almost everyone has gone through a tough break up at one time or another. And whether you are married or not, it can be a truly awful time. The last thing anyone needs in the middle of a break-up is to have the conflict made worse by uncertainty about custody arrangements and how to divide your property. During a break-up, emotions are often all over the place and it’s easy to make bad decisions that have a lasting impact.
Many people are surprised to learn that people in common-law relationships do not have all the same legal rights and obligations as married couples. People who are living together in a marriage-like relationship may be considered to be common law partners after a certain amount of time. Depending on the province and the applicable law, they may have to live together for one, two, or even three years. In Nova Scotia, a couple must live together for at least two years in order to be considered common-law under the Maintenance and Custody Act (the law that governs elements of common law relationships.)
When a legal marriage ends, the law presumes that the couple will split all their marital property (houses, cars, bank accounts, pensions, etc.) equally or 50/50. But when common law spouses break up, there is no presumption of a 50/50 split. Take the family home for example, in situations where only one person has legal title to the house, the other person may have no claim to it even if they were contributing to the mortgage.
If you are in a common-law relationship, a useful tool to consider is a cohabitation agreement. Think of it as a prenuptial agreement for non-married couples. A cohabitation agreement allows you to determine in advance how you would divide your property in the event of a break-up. There are several advantages to having a cohabitation agreement with your spouse. It is easier to agree on terms while the relationship is going well, you are less likely to feel trapped in a bad relationship for economic reasons, it reduces the stress on parents and kids in the event of a break up, and last but certainly not least, spending a little bit of money up front can save you a whole lot of money and heartache trying to work out a deal after the break up.
Two of the biggest barriers to getting a cohabitation agreement are the feeling that it is un-romantic, and that it suggests you are planning to break up eventually. Everyone hopes their relationship will make it to the happily-ever-after, but life is unpredictable. A cohabitation agreement can help you take control of your future and give you peace of mind in the meantime.
By Peter Duke, JD
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