Announcement

Collapse
No announcement yet.

Cohabitation agreement questions

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Cohabitation agreement questions

    Hello
    We may get married in the next 12 - 24 months, at which time we have agreed to develop a pre-nup for the marriage. We have also agreed that prior to our engagement it would be a good idea to live together for a period. She would move into my house and sell hers. We have begun to discuss a cohabitation agreement (with understanding pre-nup for marriage would follow and replace the pre-marriage co-habitation agreement).

    1. I understand that I live in a province where co-habitation partners do NOT achieve common law status until 2 years (or immediately upon birth of child while living together). If we plan to develop a pre-nup for the upcoming marriage BEFORE having lived together for two years/having a child:
    a) Is there no legal benefit of developing a co-habitation agreement? I.e., its redundant
    b) Could we instead develop a simple one pager confirming sharing of household operating expenses and individual assets/liabilities remain individual? Or is the assets/liabilities part redundant?
    c) Or is the better option to put nothing in writing given the aforementioned re: 2 years.

    2. I understand that the provinces of AB, SK, NS and NL do *NOT* require parties to a domestic contract to disclose property, assets, etc. for the contract to be valid. But I have searched high and low and cannot find other sources that get in to this level of detail re provincial disclosure differences:
    a) Does this sound right to you? Sources?
    b) Even if incorrect, can we agree to waive disclosure and have it stand up to challenge?

    I will be seeking legal advice on this directly but hoping those here can shed some useful background as well.

    Thanks!
    Robert

  • #2
    Originally posted by rconnors View Post
    1. I understand that I live in a province where co-habitation partners do NOT achieve common law status until 2 years (or immediately upon birth of child while living together
    Which is...where?

    Comment


    • #3
      Nova Scotia

      Comment


      • #4
        If we plan to develop a pre-nup for the upcoming marriage BEFORE having lived together for two years/having a child:
        a) Is there no legal benefit of developing a co-habitation agreement? I.e., its redundant
        b) Could we instead develop a simple one pager confirming sharing of household operating expenses and individual assets/liabilities remain individual? Or is the assets/liabilities part redundant?
        c) Or is the better option to put nothing in writing given the aforementioned re: 2 years.
        In Ontario:
        A pre-nup becomes a marriage contract unless it is provided to the contrary. Do you want a marriage contract? You may wish to look into your province's legislation.

        Couples who do not marry - whether they live together for 3 months or 30 years is immaterial - do not gain property rights. What is yours, is yours, and what is hers, is hers. After three (3) years or after cohabiting in permanence and having a child, spousal support liability may arise. In longer cohabitations a constructive trust may be argued, weakening the presumption of a complete separation of property. Common law status provides next to no rights or protections.

        2. I understand that the provinces of AB, SK, NS and NL do *NOT* require parties to a domestic contract to disclose property, assets, etc. for the contract to be valid. But I have searched high and low and cannot find other sources that get in to this level of detail re provincial disclosure differences:
        a) Does this sound right to you? Sources?
        b) Even if incorrect, can we agree to waive disclosure and have it stand up to challenge?
        In Ontario:
        A contract is valid even without disclosure, although arguments may be made to the courts to seek to overturn it. If it was a separation and one party made off like a bandit, it would likely be tossed out; a prenup, not likely. In any event, if you both have ILA and sign off on disclosure then it becomes more reliable.

        Comment


        • #5
          I live in NS and have also discussed a cohab/pre-nup agreement with my partner. We haven't reached the 2 year threshold yet; however, it's my understanding that you can do up a full agreement now, which can carry over into marriage. The agreement can say something like "both parties are or intend to live in a common law relationship" and "this agreement will also serve as a marriage contract in the event of marriage". I'm not a lawyer, so the legal wording may differ.

          In regard to disclosure, I believe it's a good idea to disclose your assets and debts now. This will make the agreement more reliable and clearly lay out what each of you own. It will cost you approximately $1,000 to get a written agreement done up and processed legally, so it's best to be thorough and get it done in one shot. I was quoted $800 + HST for a co-hab, which doesn't include the cost of her lawyer. It's a great idea for her to seek independent legal advice before signing the agreement.

          Comment


          • #6
            Teenwolf and Robert:

            Please don't take this the wrong way, but obviously both of you, even by virtue of being on this website, have a pretty good idea of the implications of Family Law in the likely (50% +) scenario that the relationship goes south....

            WHY in the world would either one of you even consider exposing yourself to that kind of liability ? Yes, you're trying to protect yourself with a pre-nup which is wise, but notwithstanding that, such a document only lessens the financial nightmare you're exposing yourself to.

            Yes, obviously I was stupid to put myself in the line of fire but quite frankly and honestly I didn't understand at the time how unfair Family Law was and the financial sinkhole it typically creates (especially if you're the higher wage earner).

            Some argue that "marriage demonstrates commitment" but I would argue that. She could get tired of you watching hockey on the weekend and divorce you for that ! In my opinion, in SOME scenarios, Family Law guidelines often offer an INCENTIVE for some "partners" to screw over their spouses and laugh all the way to the bank.


            Why not just "date" and maintain separate homes. That way, if one partner gets "bored", he/she can't screw over the other. "Fool me once, shame on you, fool me twice shame on me".

            I am curious as to your thinking. It honestly blows my mind that guys who get shafted (or who should know better) go back for more punishment. Other than being a masochist, why would any guy do that ?

            Comment


            • #7
              Perhaps they aren't so cynical as to think that the entire world is all about screwing someone else over.

              Comment


              • #8
                In a perfect world, of course not ! Partners would be fair and if they wanted to end a relationship wouldn't try to milk the higher wage earner for every dime they could.

                HOWEVER, one merely has to review this forum to find MANY examples of just that !

                Experience is a valuable teacher my friend. As I said, I obviously never thought I would get "screwed over' either. YET, if you knew how much my ex was siphoning from me every month I suspect most people would be shocked !! She simply got "bored" of the relationship and is now rolling in cash.

                So yes, forgive me if I don't think marriage is wonderful, never ending and always fair and I don't think our Family Law act is the greatest thing since sliced bread. I'm assuming your ex was wonderful, generous and reasonable and wasn't even remotely demanding upon what she is "entitled" to by the fullest stretch of the law. Sadly, not all of us are in that situation.

                Comment


                • #9
                  Thats going too far.We may make huge, terrible and costly mistakes when we are young and hopeful but I have seen marriages work second time around, where more mature people looked for lasting qualities and character rather than nice ass and good rack.Protecting yourself and hoping for the best while preparing for the worst, is a happier option than presuming that everyone out there is a con artist.

                  Comment


                  • #10
                    True, there are many examples of that on this forum. However, I would submit that the examples on this forum are a minute number of instances in comparison with the number of people who get married, stay married successfully or divorce successfully without issue. To condemn the entire idea of marriage and partnership based on the possibility of failure suggests a very lonely life for a very many people.

                    Comment


                    • #11
                      To be clear, I'm not saying EVERY ex spouse will maximize their financial gain in the event of a divorce at the expense of the other. Even I'm not that paranoid (yet) lol.

                      However, I do believe that MOST people will take full advantage of our very unfair Divorce laws/guidelines - most people can't resist the lure of easy money combined with urging on from lawyers and the govt itself.

                      Now, if you're dead broke with no assets - sure, what do you have to lose ! Then you can afford to "take a chance" on marriage.

                      However, if one were to take off your rose coloured glasses, and look at the cold statistical risk of getting fleeced from divorce (which by the way the likelihood of occurring increases with a 2nd marriage) the logical choice would be to avoid putting oneself in harm's way.

                      Also, WHY do people feel that being married or living together is so necessary. Can one not have companionship etc. by dating for a long time and maintaining separate residences. I'm not saying be a hermit, just don't sign that piece of paper or move in !

                      I agree there are people who refuse to acknowledge the risk they accept (be it people gambling in casinos or Paul McCartney refusing a pre-nup) but we know how that typically turns out !

                      I work hard for an income and it kills me to see it stolen from me from someone who realizes they've won a "lottery" c/o of Family Law in this country.

                      I realize not everyone gets burned from Divorce, but i'm guessing they are the ones who had nothing to lose in the first place. Honestly, if you took a survey among the "bread winners" in a divorce, how many REALLY would say they would treated "fairly". Remember, it's easy to be generous with someone else's money !!!
                      Last edited by shellshocked22; 09-04-2012, 12:30 PM.

                      Comment


                      • #12
                        Originally posted by shellshocked22 View Post
                        Teenwolf and Robert:

                        Please don't take this the wrong way, but obviously both of you, even by virtue of being on this website, have a pretty good idea of the implications of Family Law in the likely (50% +) scenario that the relationship goes south....

                        WHY in the world would either one of you even consider exposing yourself to that kind of liability ? Yes, you're trying to protect yourself with a pre-nup which is wise, but notwithstanding that, such a document only lessens the financial nightmare you're exposing yourself to.

                        Yes, obviously I was stupid to put myself in the line of fire but quite frankly and honestly I didn't understand at the time how unfair Family Law was and the financial sinkhole it typically creates (especially if you're the higher wage earner).

                        Some argue that "marriage demonstrates commitment" but I would argue that. She could get tired of you watching hockey on the weekend and divorce you for that ! In my opinion, in SOME scenarios, Family Law guidelines often offer an INCENTIVE for some "partners" to screw over their spouses and laugh all the way to the bank.


                        Why not just "date" and maintain separate homes. That way, if one partner gets "bored", he/she can't screw over the other. "Fool me once, shame on you, fool me twice shame on me".

                        I am curious as to your thinking. It honestly blows my mind that guys who get shafted (or who should know better) go back for more punishment. Other than being a masochist, why would any guy do that ?
                        No offense taken; however, it's not clear what you're saying. Are you suggesting that we never cohab or marry our partners? I agree that there is risk, but such is life, and that's why I will never marry without a pre-nup. I view a pre-nup and/or cohab agreement as a planned breakup, which mitigates the risk and makes the breakup go smoother. Sure, pre-nups and cohabs can be challenged in court, but they serve a purpose. Society has a pre-conceived notion of what marriage is and the implied financial comittments that come with it, but a pre-nup explicitly states what your actual intentions are. If it's well-written and the process is followed properly, it should stand up in court.

                        Comment


                        • #13
                          Your assumption is correct : why get married or co-hab at all ?

                          After all, you can still see each other as often as you want, just maintain your own place. Agreed you'll incur some additional expense for two residences but likely MUCH cheaper than financial risk of divorce.

                          I give you full credit for the pre-nup and while it helps, not 100% protection especially with spousal support (which as I understand is somewhat "grey" as to avoiding via pre-nup).

                          I'm not being sarcastic, what does being married or co-hab give you other than the pleasure of being crucified financially when she gets "bored" down the road ? One could argue that NOT being married/co-hab could encourage a longer relationship since the "incentive" of screwing over the higher income partner would vanish (ie. they couldn't nail you for support, assets YOU worked for and bought....)

                          Marriage means NOTHING when one partner can split "on a whim" and the other may very well have to shower them with cash as per Family Law guidelines.....

                          The appeal to one partner (read lower income spouse) is obvious but I'm truly perplexed why the higher income earner (who is AWARE of Family Law in our corrupt little country) would expose himself to it ?
                          Last edited by shellshocked22; 09-04-2012, 09:09 PM.

                          Comment


                          • #14
                            I agree: it's not 100% guaranteed, but what is in the courts nowadays? Seems like anything can be argued in court.

                            Marriage is not a top priority in my life, but it is very important for a lot of women. Of course there are exceptions, but most women I've met want to marry someday. If you completely rule out marriage, then you have significantly reduced your dating "market". Further to this, rule out cohab, and there won't be much left to choose from.

                            I'd be completely content without getting married and spending a small fortune on the ceremony, but I do like living with my partner. Sharing a bed together and being involved in our day-to-day lives is something I enjoy.

                            I'm aware of the Family Law in regard to marriage and CL, and that's why I want a cohab that will still be valid if we marry. Like I said earlier, cohabs and pre-nups will stand up in court if done properly. I've researched it to death and I understand what needs to be done to make it reliable. I don't agree that SS is a "grey" area, as I have numerous case law where where an SS waiver was upheld in court. The key is to actually live by the arrangement outlined in the agreement; if you deviate from that, then you're opening yourself to possible trouble.
                            Last edited by Teenwolf; 09-04-2012, 09:33 PM.

                            Comment


                            • #15
                              And God promised men that good and obedient wives would be found in all the corners of the world.He then made the earth round.....and laughed....and laughed.....and laughed...

                              Comment

                              Our Divorce Forums
                              Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                              Working...
                              X