Many couples today choose to live together in long-term and committed relationships without marrying. What some couples don’t understand is that the law treats married and unmarried, or common-law, spouses differently. It is important to understand these differences and how they will affect a person’s rights to property, support payments or a partner’s estate.
Some key things to remember: in Ontario, property is not automatically divided between unmarried couples if a relationship ends; unmarried spouses may have a spousal support obligation, but only if they have a child together or if they have been living together for at least three years; and only married spouses automatically have a right to share in a spouse’s estate if that spouse dies without a will, no matter how long a couple has been in a relationship or whether they have children together.
How can we protect each other with a cohabitation agreement?
In Ontario, unmarried couples are permitted to negotiate a contract–a cohabitation agreement–that lets them agree on certain rights and obligations in the relationship. A cohabitation agreement gives couples a great opportunity to carefully consider each other’s financial situation now and in the future, and decide together how they wish to share property, pay (or not pay) support to a partner in the event of a break-up, and what happens to the estate upon the death of a partner.
Cohabitation agreements can also address who has a right to direct the “education and moral training” of children, but it cannot address who will have custody or access to children. That can only be decided once a relationship ends.
It is important to plan ahead, be aware of your rights, and know what will happen if a relationship ends by choice or in the event of a death. It’s never too late to draft a cohabitation agreement, but in order to have legal effect these agreements need to have clear terms that are understood by each person. This is why it is critical to have a qualified lawyer assist in the preparation of a cohabitation agreement.
Many couples worry that having a conversation about a cohabitation agreement will be difficult and distasteful, but having these discussions now can lead to thoughtful and caring discussions about the future.
EDITOR’S NOTE: This publication is the fifth installment of our firm’s Legal Matters series, which answers a reader’s question every week. If you have a general legal question that you would like to have addressed please send it via email to firstname.lastname@example.org