Article written by Kim Brown
With age comes wisdom, and if you’re starting a new relationship in your 40s, 50s or even 60s, you probably have a clear idea about what you need from your partner, and what you need to do as a partner, to make it work.
But there is one big mistake that couples sometimes make when they decide to move in together, and making this mistake can have far greater consequences for older couples.
Not Signing A Cohabitation Agreement
A cohabitation agreement is a written legal contract between two people who are living together or are about to move in. It is similar to a marriage contract agreement, and usually contains instructions about how both parties will deal with finances, arrangements for children (if applicable), support and property if the relationship ends.
Having a cohabitation agreement in place is always a good idea. It’s like having an insurance policy, people hope they never have to use, but if the relationship ends, especial on a sour note, they are happy they have it.
Some common-law couples don’t consider cohabitation agreements because they assume that they are entitled to the same legal rights as married couples. But that is not true. As documented by the Ministry of the Attorney General, “[c]ommon law couples do not have the same rights as married couples to share the property they bought when they were living together. […] Common law couples also do not have the right to divide between them the increase in value of the property they brought with them to the relationship.”
However, it is possible for a common-law partner to make a claim against an ex’s property using an equitable relief claim such as a constructive trust claim, or make a request for spousal support, and sorting out those claims can be complicated and costly. Here’s where things can get particularly complicated for older individuals.
As people approach retirement, it is much more difficult for them to recover from a serious financial blow. And if they find themselves racking up litigation fees, or are ordered to pay spousal support unexpectedly, it could derail their retirement plan.
When these issues have already been addressed while both parties are feeling optimistic about the relationship, the breakup is much more predictable and amicable.
But it’s not enough to simply put together a contract over a quick cup of coffee. It’s important couples also avoid doing these two things:
Forgetting To Exchange Full Financial Information
Providing full financial disclosure to each other is a must. This information is important, and will enable each party to make an informed decision about what should be included in the cohabitation agreement.
Without taking this step, a cohabitation agreement may not be enforced by the courts if it is challenged.
Saying ‘No Thanks’ To Independent Legal Advice
Parties aren’t legally required to meet with a family lawyer before singing a cohabitation agreement, but doing so has several advantages. A legal professional can recognize red flags in a contract that the party may have missed, and they can help the party understand what is likely to occur should the contract be enforced. Couples should not use the same lawyer, they each need someone who can advocate for their individual rights.
Still have questions about cohabiting after a divorce? Contact us to arrange a consultation. We have three convenient locations in downtown Toronto, North York and Vaughan.