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Commonly asked cohabitation agreement questions.
A BC Cohabitation Agreement is a contract two people enter into who either already do or intend to reside together in a marriage-like relationship.
A BC Cohabitation Agreement sets out a couple’s intentions with respect to property division, income sharing by way of spousal support, and other rights and legal issues in the event the couple’s relationship ends.
A BC Cohabitation Agreement may also address each party’s responsibilities owed to their spouse’s children, if their spouse has children from another relationship, such as child support.
Typically, the best time to get a BC Cohabitation Agreement is early on in the relationship. This way, there are no misunderstandings about each spouse’s responsibilities owed to the other in the event of separation, before the relationship and living circumstances advance too far.
It is natural to want to avoid these tough conversations with your spouse, but the setting out of clear expectations early on can go a long way toward avoiding potential conflict in the future.
Nevertheless, in order to claim property division or claim spousal support under the Family Law Act, you must first meet the definition of ‘spouse.’
Am I a spouse?
Under the Family Law Act, even if you are not married, you are a spouse if you meet one of the following definitions:
- You lived together in a marriage-like relationship for at least two years
- Except for the purposes of dividing property or pensions, you lived together in a marriage-like relationship for less than two years, but you and your spouse have a child together.
- This section allows you to apply for spousal support from your spouse even if you did not live together for at least 2 years
More specifically, Section 3 of the Family Law Act states:
(1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person
(2) A spouse includes a former spouse
(3) A relationship between spouses begins on the earlier of the following:
(a) the date on which they began to live together in a marriage-like relationship
(b) the date of their marriage
(4) For the purposes of this Act,
(a) spouses may be separated despite continuing to live in the same residence, and
(b) the court may consider, as evidence of separation
(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and
(ii) an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently
What Does This Mean for BC Cohabitation Agreements?
If You Do Not Have a Child with Your Spouse:
- Given that you and your partner are not ‘spouses’ until you have lived together for at least 2 years, neither of you are entitled to make a claim to the other’s property or claim spousal support from the other until you meet that threshold.
- Therefore, even without a Cohabitation Agreement, the Family Law Act generally protects your personal property from your spouse making any claim to it within the first two years of your cohabitation.
- However, once you are living together with your partner for two years, you are spouses and the Family Law Act and all its rights and responsibilities apply to your and your spouse, unless you have a Cohabitation Agreement stating otherwise.
If You Do Have a Child with Your Spouse:
- If you and your spouse have a child together and you have been living together for two years, the provisions of the Family Law Act, including those regarding property division and spousal support, apply to you and your relationship.
- If you and your spouse have not been living together for two years but you have a child together, the property division laws do not apply to you, but you can claim spousal support from your spouse, unless you have a Cohabitation Agreement stating otherwise.
It is important to note that all of the terms of the Family Law Act addressing parenting issues such as child support, guardianship, parenting time and contact apply to all parents, regardless of whether or not parents lived together.
There are many benefits associated with entering a well-drafted, comprehensive, and personalized BC Cohabitation Agreement. In the event a spousal relationship ends, some benefits of a BC Cohabitation Agreement include:
- Clearly outlined expectations and responsibilities of each spouse early on in the relationship so that proper financial planning and steps can be taken by each spouse in the event the relationship ends
- Reduced risk of potential conflict after separation
- Supports your wishes set out in your will in the event you die while in a spousal relationship
- Saved money and expense in potential litigation fighting over property division and other issues after separation
- Choice – the ability to decide how your property will be shared, if at all, after separation.
This question is commonly asked of family lawyers all over BC. Notwithstanding the above-mentioned benefits of a BC Cohabitation Agreement, not everyone needs a Cohabitation Agreement.
There are many reasons why you may want a BC Cohabitation Agreement. Typically speaking, if you have either already acquired some assets or you intend to acquire assets during the relationship which you wish to keep in the event of separation, a BC Cohabitation Agreement is probably a good idea. The same may be true if you want to avoid being responsible for your spouse’s debt, among many other reasons.
However, there are exceptions. Before committing to any BC Cohabitation Agreement, it is important that you speak to a family lawyer to discuss how a BC Cohabitation Agreement can serve and impact you in your individual circumstances.
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