Many more millennials are getting to a stage in their lives where they have graduated from university, they have gotten their first big job coming out of school and found their significant other. However, one recent trend amongst millennials is to prolong or delay getting married. Instead, many millennials opt to get into the real estate market and purchase property with their partners rather than spending it on a big fat wedding.
There is absolutely nothing wrong with that choice, perhaps it should be celebrated even more so than a wedding, especially since breaking into the real estate market in this day and age is no easy feat. Despite these accomplishments you still have to protect yourself in the event if the relationship breaks down.
A common misconception cohabiting couples have upon break down of the relationship is that they are entitled to an equal division of property in case the relationship breaks down. The reality is, unlike married spouses, common-law spouses have no statutory rights to the other person’s property if the relationship ends. For this reason, it is important for couples to consider a cohabitation agreement before they start living together or during cohabitation. If they decide to get married later on in their lives, the cohabitation agreement can become a marriage contract.
A cohabitation agreement is a binding written document that establishes how you and your common-law partner will divide your property in the event of a separation. A cohabitation agreement can deal with all financial aspects of the relationship including rights and obligations on its termination, but not custody or access regarding children. While both partners can come to an agreement alone, it is highly recommended that both parties obtain independent legal advice to ensure that all rights and responsibilities are thoroughly understood. An agreement drafted without independent legal advice risks not being upheld in court in case of a separation and litigation of the issues between the parties.
In the absence of a cohabitation agreement, common-law couples do not have any statutory rights protecting property that is not jointly owned. A common-law spouses’ claims are restricted to resulting and constructive trust claims. To make such a claim, the following criteria must be met :
a) enrichment of the defendant;
b) deprivation suffered by the Plaintiff;
c) the absence of a juristic reason for the enrichment.
The Supreme court decision in Kerr v Baranow created a new test for unjust enrichment. A common-law spouse will only receive a share of assets under the umbrella of wealth accumulated as a joint family venture. The test considers:
- To what extent the parties exercised mutual effort to work towards common economic goals;
- The degree of economic integration and interdependence between the parties;
- Whether there is evidence of actual intent to integrate their finances; and
- Whether the plaintiff has suffered detriment as a result of making the family his or her priority in decision making.
Call Kesarwani Law Office today and let us advise on and draft your cohabitation agreements. We service across the GTA, including Mississauga, Brampton, Vaughan, and Oakville.
Contact Jasdeep Dhillon at 647-349-8300 or at email@example.com
Please do not construe this as legal advice and contact a lawyer before making arrangements for cohabitation agreements.