Legal Protections for Common-law Partners

Protecting Your Rights with a Cohabitation Agreement

Property Rights

In the absence of a cohabitation agreement, common-law partners might find themselves in a precarious position regarding property rights. Without a clear legal claim, one partner may be left without any entitlement to the home they have lived in or contributed to financially. For example, if one partner owns the property and the relationship ends, the other partner may have no legal right to claim a share of the home or other assets accumulated during their relationship, despite having made significant financial or non-financial contributions.

Ontario cohabitation agreement can specify the division of property acquired before or during the relationship, ensuring that both partners’ contributions are recognized and valued. This can include not only the family home but also other assets like investments, savings, and personal property, offering a fair and agreed-upon division that reflects each partner’s contribution to the relationship.

Financial Support

Another critical area is financial support. Common-law partners are not automatically entitled to spousal support upon separation, as married couples are. Without a cohabitation agreement, a partner who has sacrificed career advancement or employment for the benefit of the relationship or to care for children may find themselves without financial support from their former partner.

Cohabitation agreements can include provisions for spousal support, detailing the circumstances under which one partner would be entitled to receive financial assistance from the other, the amount of support, and the duration. 

Inheritance Issues

Regarding inheritance, common-law partners do not have the same rights as married spouses. Without a will, a surviving common-law partner may not automatically inherit any part of their deceased partner’s estate, potentially leading to financial hardship and legal battles with the deceased partner’s family.

Cohabitation agreements, coupled with a well-drafted will, can ensure that the surviving partner is provided for in the event of the other’s death, outlining specific inheritance rights and entitlements to property, pensions, and other assets.

Updating and Revising Cohabitation Agreements

Life is dynamic, and relationships evolve. Changes such as significant income adjustments, the birth of children, the acquisition of substantial assets, or shifts in the legal landscape can impact the relevancy and effectiveness of the original agreement.

The Importance of Periodic Review

Cohabitation agreements, while robust, are not set in stone. A periodic review—typically every few years or after significant life events—ensures that the agreement remains fair and equitable for both parties. 

For example, if one partner decides to stay home to care for children, impacting their career and financial independence, the agreement might need to be adjusted to reflect this change, potentially including provisions for financial support or compensation. Similarly, the acquisition of significant assets after the original agreement was drafted might necessitate a revision to address how these assets would be divided upon separation.

Guidance on Amending Agreements

Here are steps and considerations for partners looking to amend their agreement:

  1. Mutual Agreement: Both partners must agree to any changes. Open and honest communication is key to identifying which areas of the agreement need revision and reaching a consensus on those changes.
  2. Legal Consultation: Before making any changes, consulting with a legal professional who specializes in family law is crucial. A lawyer can advise on the legal implications of proposed changes, ensuring they are valid and enforceable. The lawyer can also inform the partners if recent changes in the law affect their agreement.
  3. Drafting Amendments: Amendments should be clearly written, specifying the changes being made to the original agreement. 
  4. Formal Execution: Like the original agreement, amendments must be formally executed to be legally binding. This typically involves signing the revised document in the presence of a witness or notary.
  5. Keep Records: Both partners should keep copies of the amended agreement in a safe place, along with the original agreement, to ensure that there is a clear record of the terms governing their relationship.

Periodic reviews and revisions of a cohabitation agreement reflect the understanding that relationships and circumstances change over time.  Legal consultation in this process cannot be overstated; it safeguards the validity and enforceability of the agreement, providing peace of mind for both parties involved.

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