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Legal Ease
Legal Ease, Lawyer
Category: Canada Law
Satisfied Customers: 109729
Experience:  I have been a lawyer since 1985 and have been a professional on this site for 5 years.
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I am seeking to purchase a home that will be the primary

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I am seeking to purchase a home that will be the primary residence and currently have a common law spouse (common law for a few years and we have two children together). As I will be using inheritance to put a down payment or possibly to purchase the entire home, what do I need to be aware of legally to protect my inheritance should the relationship end?Would this change or differ if we were to get married?

Hello! My name is Debra (formerly known as Legal Ease). Thank you for your question. I'm reviewing it now, and will post back again shortly.

Whose name will the house be in?

Customer: replied 9 months ago.
This is part of the question I have and is, as of yet undecided. Should the house be in my name to protect those assets? What happens to those assets if the house is jointly owned and there is a relationship breakdown?

Yes the title should be in your name alone.

In Ontario common law spouses don't have property rights or matrimonial homes. So for you spouse to be able to make a claim to an interest in an asset in your name she would have to prove a contribution to it. But after several years courts have found that common law spouses are in a what they have called a joint family venture which means she would be said to be contributing indirectly.

So after several more years she could successfully claim some interest.

If you were married she would automatically share in the value of the matrimonial home. That is the case even though you inherited the money. The reason why is that while gifts and inheritances are not shared the matrimonial home is even if a gift or inheritance when into it.

If the house is held jointly she owns half the house and you would have to prove that she isn't entitled to half by arguing about contributions. I am talking about if you remain common law.

So the very best approach is to have a cohabitation agreement that makes it clear what happens if your relationship breaks down.

Does that help?

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Customer: replied 9 months ago.
Hi There, Thank you for the response. Just to clarify my understanding - would a cohabitation agreement still be valid if it was created before a legal marriage took place? That is to say, is a cohabitation agreement the same as a"pre-nupt?" It sounds like either way, having our intents and wishes in writing for the what if, would be prudent which he is in agreement with.

In Ontario these contracts are called domestic contracts. Canada uses the term marriage contract rather than pre-nup. And you could have a contract that goes on after marriage as well. You should in fact.

Customer: replied 9 months ago.
This is very helpful for me. Thank you again. One last question. Can this agreement be made without the use of a lawyer? Can I draft this and have it notarized or simply reviewed by a lawyer?


To make the contract clearly binding you each need independent legal advice.

It is not notarized as you only notarize when a document must be used in another jurisdiction.

No family lawyer is going to review a contract done by a lay person.

But you can tell them exactly what you want in it.

Is there anything more I can help you with at this point in time?

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