I’m in a common law marriage in Nova Scotia. Can I sign a prenup even if we never get legally married?
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A “prenup” (or prenuptial agreement) is a form of marriage contract, usually signed prior to getting married, and in anticipation of getting married in the future. However, a marriage contract can also be signed after the marriage, and a version of this type agreement is called a “cohabitation agreement”.
Cohabitation Agreements are valid whether or not you intend to marry
In Nova Scotia, a cohabitation agreement can be signed by any couple, including same-sex couples, either in anticipation of living together, or after they have already started living together -whether or not they ever plan to get married.
A cohabitation agreement Provides clarity on expectations
A cohabitation agreement is an excellent way to both protect assets and have some clarity and stability in the case of a breakup. A cohabitation agreement, if written correctly, continue as a marriage contract if the couple later gets married.
A cohabitation agreement should outline expectations if the relationship ends
A cohabitation agreement describes what the parties agree will happen to any jointly owned property if they separate. It also can deal with what will happen to things like pensions or vehicles, which may be in the name of one person, but have a potential claim from the other.
Child support and parenting arrangements are not enforceable terms of a Cohabitation agreement.
In Nova Scotia, a cohabitation agreement cannot set child support or parenting arrangements, as those are dependent on the circumstances at the date of separation.
Cohabitation Agreements are Custom to the Parties
In Nova Scotia, you can customize your cohabitation agreement to be reflective of how you want the terms of your cohabitation to be. For example, parties can agree that they will not make a claim for things like:
spousal support;
pensions; and
property inherited from their families.
In other cases, often when one person is intended to care for the home primarily, they may agree in advance to spousal support provisions, either in a lump sum or a monthly payment.
Independent Legal Advise is key to enforcing the terms of a Cohabitation Agreement
These agreements are most effective when both parties have independent legal advice, and when there has been full disclosure of each party’s assets, debts, income and property. Without this, a party may be successful in setting aside the agreement (or portions of it), if they make a court application and can show that they did not know what they were giving up.
By: Anastacia DesLauriers – Lawyer
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