Until mid-19th century, women were not permitted to hold property. All property was regulated in the name of the husband and through marriage. Marriage was a tool to determine fathers of offspring and regulate the property they would one day inherit.
Today, marriage is a social institution used to regulate relationships and serve as a method to encourage monogamous relationships, property division and traditional family growth. However, millennials are looking at marriage with completely different lenses. Millennials are moving towards cohabitation rather than marriage. Why?
There is less of a social incentive for marriage as women are earning more, can own property and face less of a social stigma for cohabitation. Furthermore, many feel that cohabitation leads to less legal complications than divorce after marriage as couples can simply sell the home. In respect to property ownership, many couples feel it is better to purchase a home rather than rent a home. Despite all the positives of common law marriages, there is a flip side to consider.
Although common-law marriage has a place in Canadian law, there are complications that are not addressed. For instance, property is treated differently; if you were to purchase a home with your significant other and provide the majority of the down-payment, the home would not be equally divided upon separation as it would be if you were married. Moreover, if the couple were married, the spouse with a lower economic income would be supported by the other spouse. Conversely, in a common-law case, the court will assess how invested you are in the relationship by considering if you have joint bank accounts and the length of your relationship. Thus, if one individual paid for furniture, renovations and helped pay for the mortgage but didn’t contribute to the down-payment, they may still walk away with nothing. The longer the cohabitation period, the more likely the relationship will be treated like a legal marriage.
Although it may not be romantic, an option would be to invest time in drafting a marriage agreement outlining each partner’s responsibilities in the marriage.This agreement will compel each person to discuss their finances in detail and responsibilities relating to mortgage, maintenance and how costs will be divided upon separation. A major benefit to drafting a legal agreement is avoiding he said she said arguments in court which can result in costly and lengthy trials. This is different from a prenuptial agreement. Although prenuptial agreements in the U.S are similar to this kind of arrangement, Canadian prenuptial agreements do not allow for the same amount of detail. Common law agreements aren’t particularly popular but are definitely worth considering.
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Points of Discussion:
1. After considering the above – noted information do you consider cohabitation a good option?