New beginnings at any age: Safeguard your future with a cohabitation agreement

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Parents and grandparents who find love later in life should consider signing a cohabitation agreement to avoid a messy fight over their assets.

A series of demographic trends are combining to boost the number of partnerships between older people, frequently involving parties with their own sets of grown-up children and grandchildren — not to mention a healthy collection of property accumulated over the course of a lifetime.

According to Statistics Canada, British Columbians are living longer than ever — so much so that the number of senior citizens in the province has doubled in the last decade to account for 20 per cent of the population in 2021. Meanwhile, the same government agency suggests that Canada’s seniors are in the midst of a Grey divorce boom, with over-50s the only age group bucking the trend of the country’s overall declining divorce rate.

Accidental Spouses

While many of these older re-partnered couples have an informal understanding that their assets will remain separate, the intricacies of B.C.’s family and estates laws make that goal more challenging than they might assume — unless they have it all down in writing.

Unlike the law in some other provinces, B.C.’s Wills, Estates and Succession Act and Family Law Act make little practical distinction between married spouses and common-law ones, which means that parties need only have spent two years in a “marriage-like” relationship to be considered spouses under either piece of legislation.

Many couples unknowingly stumble into spousal relationships, with the first sign frequently coming in the form of a legal claim by one party seeking an interest in the other’s property or estate.

Without a fixed definition of the term, disputes abound in B.C. courts about which relationships are “marriage-like,” focusing on factors such as the level of commitment between the parties, their financial reliance on one another, whether they live together and how they present themselves to friends and family.

Blended Family Dynamics

Older B.C. residents are particularly susceptible to accidental spousal relationships since they typically married and raised their children long before the 2013 overhaul of our family law regime, in an era when more traditional views prevailed regarding the institution of marriage.

With blended family dynamics at play, the central relationship doesn’t even have to go sour for it to end up in court since the children of either older person may see their parent’s new partner as a threat to their inheritance — and justifiably so. 

When a person dies without a will, their spouse is typically entitled to at least half of the estate and potentially 100 per cent if the total assets are worth less than the preferential share set by law.

Even if the deceased had a will, B.C.’s Wills, Estates and Succession Act allows a spouse to claim support against the estate if they are not adequately provided for.

To complicate matters further, it may even be possible for the estate of a deceased person to make a claim for property division against a spouse they had separated from before death, as long as the claim is advanced within the two-year time limit set by the Family Law Act.

Minimize Litigation Risk

In the recent B.C. Court of Appeal decision Weaver Estate v. Weaver, the province’s top court confirmed that a spouse’s interest in a division of family property does not expire when they die and may be advanced by their estate, even if the person failed to commence proceedings while still alive.

Older couples who want to minimize the risk of this kind of litigation should consider hiring an experienced family lawyer who can draft a cohabitation agreement that allows them to take control of their situation.

In some cases, the agreement could be a simple formalization of the pair’s intention to keep their property separate, including a list of all the key assets and debts held by each party. Other couples may wish to document more complex financial arrangements, and a contract can be tailored according to their unique needs.

In any case, a well-drafted agreement should address each party’s obligations in the event the relationship ends, whether as a result of a breakdown or because of the death of either person.

If you are getting married for the second time and want to explore how a cohabitation agreement can protect you and your partner, schedule a consultation with one of our lawyers. We would be pleased to help you.

*This post is not intended to be legal advice and should not be taken as such. Please contact McConnan Bion O’Connor & Peterson if you have any questions regarding this post or require assistance or legal advice regarding a divorce negotiation.