Common law union
Couples who have chosen to live in a common law union have no legal obligations to their spouse; regardless of how much time they spent building a life together. This means that in the case of a separation, the mandatory sharing of family assets does not apply and all the things you purchased while living together will be shared by establishing proof of ownership, which can become tough to manage as explained by Mr Jean Lambert, president of the Chambre des Notaires: “If the couple who is separating doesn’t get along, it creates an ambiguous situation, especially if the union lasted several years and they no longer remember who bought what. That’s why it’s important to take the lead when things are going well and to prevent so you can be well prepared for all eventualities.”
But according to the results of a CROP survey conducted for the Chambre des Notaires in March 2013; only 19 % of couples living in common law union have a cohabitation and separation contract, an important tool to protect common law spouses.
The cohabitation and separation contract
This document is the main tool to protect you in the case of a separation, and to be legal, it must be signed by both partners. This agreement may be amended at any time if your living conditions change, as long as both spouses agree. The cohabitation and separation contract allows you to:
- Manage various aspects of your life together;
- List all the assets and to who they belong;
- Identify aspects of what is common property;
- To provide compensation when one spouse stays at home or works part-time to take care of the children.
Are there any other ways to protect us?
As the cohabitation and separation contract doesn’t cover all aspects of couple life, it may be beneficial to use other measures to make sure you cover all the possibilities. Here are the other options available:
- Undivided co-ownership agreement: This document allows spouses to agree on the contribution each has to make for expenses and repairs of the property, rights and obligations in the eventuality of a sale, separation or death.
- Mandate in case of incapacity: This document protects the remaining spouse in the case on is declared incapacitated. The other spouse will be able to make decisions, represent you in all spheres of your life and to make sure your wishes are respected.
- Will: A will is the only document that gives a legal right to your common law partner after your death. It allows you to specify what will be left to the spouse and to designate who you want to handle the estate.
Do you have to see a notary?
If you decide to make a cohabitation and separation agreement with your spouse at home and it’s not notarized, it will still be recognized in the eyes of the law. But Mr. Lamberts warns that it may not be the best option: “Most people aren’t aware of all the laws that exist and what they entail. The role of the notary is to answer all the questions, to inform both parties and to make sure there is balance in the decisions of the couple.”
To find a notary that makes cohabitation and separation contracts or to get more information, you can call 1 800 NOTAIRE (1-800-668-2473) Monday to Friday, from 8:30 am to 5 pm.