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It is a common misunderstanding that married couples and unmarried couples living together in a long-term marital relationship (often referred to as “common-law” couples) have the same legal status. They do not. Married couples and common-law couples have different rights and obligations pertaining to property, debts, the family home, and inheritance. They do, however, usually have the same rights and obligations in relation to their children.

Cohabitation agreements and marriage contracts are two options available to assist you and your partner to address and provide certainty to issues that are important to both of you. The most common issues covered in these agreements are property division and spousal support should there be a breakdown in the relationship leading to a separation. The agreements cannot determine who will have custody or access to children as that must be decided in accordance with the children’s best interests at the time of separation.

A cohabitation agreement (commonly known as a “pre-nup”) is a written document that you and your common-law partner can make before or while you are living together. It is a type of domestic contract that determines how you will deal with issues while you are together, or at the end of your relationship should that unfortunate event occur.

A marriage contract, also a type of domestic contract, is a written contract between married partners that determines how they will deal with their issues while they are married, or should the parties separate due to a breakdown in the relationship.  A marriage contract can be made before you marry, or after getting married.

It is very important to have your agreement prepared by a family law lawyer to best ensure that your agreement will be binding.  Each of you should get legal advice from different lawyers, so that there is no conflict of interest. Your lawyers will help you understand your rights and responsibilities towards your children, your partner, and your income and assets. Your lawyers will also help you understand what you are agreeing to. Your agreement is less likely to be challenged in court later if both you and your partner have a clear understanding of the terms of the agreement and how each term affects you.

To learn more, please communicate with any member of our Family Law Team.

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