Marriage contracts a good idea for common law couples

Joyce Blond Frank B.A., B.C.L., LL.M.

March 2009

Say “marriage contract” or “common law contract” and people think, “how unromantic.” Not so many years ago couples about to marry regularly entered into marriage contracts. However, the law has evolved to provide greater protection to those who are married.

With the existence of family patrimony laws, which establish rules as to the evaluation and division of the family home(s), furniture, vehicles and registered funds between the couple upon death or divorce, marriage contracts have become less popular. But what happens when you want to live together as a couple and not marry, as more and more people are doing?

As mentioned in a previous article, if you’re not married and choose to live common law, there is no right to spousal support upon separation. Also there may be a question as to what happens to savings and property accumulated during the relationship. What happens to the condo you are living in which is in the other person’s name? How do you support yourself? How do you protect yourself?

As difficult as it may be to think about an eventual break up at such a romantic moment, it would be wise to enter into a common law contract as you begin a life together. So long as that contract is not in violation of any of our laws pertaining to contracts in general, the courts will enforce its terms should your ex-partner refuse to do so.

What should be provided for in the contract will vary with each individual situation and will depend on such factors as the age of the parties, their health status, their individual assets and savings, the number of dependent children they have, their income, their earning capacity, their accumulated debt load, and other obligations they may have.

In most cases it should include a list of what items belong to each party, a statement of how expenses will be shared and under what circumstances that contribution might change (e.g. birth of a child, loss of employment), who will own assets that might be accumulated during the relationship, who will be responsible for managing the various aspects of the household. It should also provide how, in the event of separation, the assets accumulated during the relationship will be divided, what, if any, alimentary support should be paid, who will remain in the family residence, how the contents of the home will be divided, whether the family home will be sold and how the proceeds will be divided, who will keep the car, who will pay the debts.

There is no reason such a contract cannot be modified during the time the parties are together should circumstances change.

One always hopes a relationship will last forever, but in the event that it does end, hopefully the common law contract can act as the catalyst that permits the parties to remain friends rather than adversaries sitting at opposite tables in a court room.