Cohabitation & Pre-nuptial Agreement
If you are considering moving in with or marrying your current partner, it is important to know that there are laws which will govern any future separation. These laws determine how your property will be divided, whether one party will be obligated to support the other, and some issues concerning your children. Entering into a cohabitation or pre-nuptial agreement before living together or getting married is an opportunity for you and your spouse to determine how you wish things to be dealt with upon separation as opposed to simply allowing the law to determine these issues.
Cohabitation and Pre-nuptial agreements can address you and your partner’s current financial arrangements, current arrangements for your children, as well as your wishes for how custody/access, support issues, and property will be dealt with should your relationship end. It is important to note that although you can include custody and child support arrangements in a cohabitation agreement, the Court will not follow the same if it determines that they are not in the best interest of the children.
If you are considering marriage or cohabitation, please call (902) 492-7000 to arrange a consultation to discuss the law which will apply to you with one of our experienced family law lawyers.
A cohabitation agreement is a written legal contract between two people who are living together or who are planning to live together. There is no legal requirement that couples enter into a cohabitation agreement, however such an agreement can provide parties with some control over the economic consequences of a relationship breakdown. The law which deals with property division upon separation of common law couples who are not registered as Domestic Partners is based on principles such as “unjust enrichment” and “joint family ventures”. These concepts can be complicated and depend on specific factual circumstances. One important consideration in the determination of property division of common law spouses is the intention of the parties.
Cohabitation Agreements can assist the court in determining what the true intention of the parties was in entering into their relationship. Depending on your circumstances a Court could order that your assets be divided with your partner or that you pay spousal support to your partner even though you are not married. If you are entering into a relationship with significant assets or where there will be a significant income difference, it is advisable to discuss a potential cohabitation agreement with a lawyer. A lawyer can ensure that the agreement you enter has the effect you intend. In addition, having your agreement drafted by a lawyer is a consideration which can increase the likelihood that your agreement will be adopted by a court should the agreement be challenged in the future.
Before beginning a common law relationship you should seek the advice of a lawyer to determine how to protect yourself.
A pre-nuptial (‘pre-nup’) agreement is an agreement which is entered into by couples prior to getting married. Pre-nuptial agreements can deal with you and your future spouse’s intended financial arrangements, arrangements for your children as well as your wishes for how custody/access, support issues and property will be dealt with upon separation and divorce.
There is no requirement in law that couples enter into a pre-nuptial agreement, however an agreement of this nature can provide parties with some control over the economic consequences of their relationship breakdown. For example, when a married couple separates, the provisions of the Matrimonial Property Act apply to the division of their property.
The starting point under the Matrimonial Property Act is that all matrimonial assets be divided between the parties in equal 50/50 shares regardless of the ownership of these assets. Matrimonial assets are defined in the Matrimonial Property Act as all property acquired before or during the marriage by either spouse. Pre-nuptial or marriage contracts which are in writing, signed, and witnessed are recognized by the Matrimonial Property Act and can explicitly exclude certain provisions of the Act and substitute a division of property which may be determined by the parties as a more equitable distribution.
If you are entering a marriage with substantial assets or have previously been through a divorce and wish to protect your remaining assets, a lawyer can help you draft an agreement about how your financial and property matters will be dealt with should your relationship breakdown. For example, you may consider entering into a relationship with someone who has a lot of debt and want to protect your assets from claims made by your partner’s creditors or you may want to protect your assets to pass along to your children. In any of these situations you should speak with an experienced lawyer to obtain the legal advice you need.
In Nova Scotia, couples who do not wish to get married but would like to have the “economic” rights of legally married “spouses” can register as domestic partners by filing a prescribed declaration with Vital Statistics. Common-law couples who register as domestic partners have the same spousal rights as married spouses under the Matrimonial Property Act.
To discuss the legal implications of entering into a Domestic Partnership with one of our lawyers, please call us at (902) 492-7000 to arrange a meeting.
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