Unlike married couples, common-law partners in New Brunswick do not have an automatic legal right to divide property if they separate. Drafting a Cohabitation Agreement allows you to establish rules for property and debt division. Having a lawyer draft this domestic contract usually costs between $1,500 and $3,500 CAD.
Many couples in New Brunswick mistakenly believe that living together for a few years grants them the same legal rights as married spouses. Under the provincial Marital Property Act, this is entirely false.
If you separate without a domestic contract, the general rule is that whoever bought the asset keeps it. Whether you live in Bathurst, Moncton, or Fredericton, drafting a formal Cohabitation Agreement is the safest way to protect both partners from financial ruin. 📍
Step-by-Step Process for a Cohabitation Agreement in New Brunswick
A Cohabitation Agreement acts very much like a prenuptial agreement, but it is specifically designed for unmarried couples living together. It sets clear rules for what happens to your home, bank accounts, and debts if the relationship ends.
Step 1: Discussing Financial Boundaries Together
The process begins at home. You and your partner need to have an open conversation about your financial goals. Discuss how you will split household bills, what will happen to a home if only one person’s name is on the mortgage, and whether either of you will pay spousal support in the event of a breakup. 💬
Step 2: Exchanging Full Financial Disclosure
You cannot sign a legally binding contract in Canada without knowing exactly what your partner owns and owes. Both of you must exchange recent bank statements, tax returns, debt records, and property valuations.
Complete transparency is mandatory. If one partner hides an asset, the Court of King’s Bench may cancel the agreement if you ever separate.
Step 3: Hiring a Law Firm to Draft the Document
Once you agree on the terms, one partner should hire a family lawyer to draft the actual Cohabitation Agreement. The lawyer will ensure the wording complies with New Brunswick law and clearly outlines the division of assets.
Step 4: Securing Independent Legal Advice
To make the contract enforceable, the partner who did not draft the document must take it to a different law firm. This is called obtaining Independent Legal Advice (ILA). 📄
The second lawyer reviews the contract to ensure it is fair and that the partner understands the rights they might be giving up before signing.
Common-Law vs. Married Property Rights
| Legal Aspect | Common-Law Couples (Without Contract) | Married Couples |
|---|---|---|
| Marital Home | Belongs to the person whose name is on the title. No automatic 50/50 split. | Both spouses have an equal right to stay in the home and split its value. |
| Pensions & Savings | Each partner keeps their own pension and savings. | Subject to equal division under the Marital Property Act. |
| Spousal Support | May apply after living together for 3 years, or 1 year with a child. | May apply upon separation depending on financial need and income disparity. |
How Much Does it Cost in New Brunswick?
Investing in a Cohabitation Agreement is far cheaper than fighting a complex property battle in court later. Typical costs include:
- Drafting the Agreement: A local family lawyer will typically charge between $1,500 and $3,500 CAD to draft a standard cohabitation contract.
- Independent Legal Advice (ILA): The second lawyer’s fee usually ranges from $400 to $800 CAD.
- Court Battles (Without a Contract): For context, if you separate without an agreement and have to sue for “unjust enrichment” to get a share of a house, litigation can easily cost $15,000 to $30,000+ CAD.
How Long Does the Process Take?
Drafting a standard Cohabitation Agreement usually takes about 3 to 6 weeks from the initial consultation to the final signing. ⏱
If you have complex assets, such as a jointly owned business or multiple real estate properties, the negotiation phase may extend to 2 or 3 months.
Frequently Asked Questions (FAQ)
What happens to the agreement if we get married later?
In New Brunswick, a well-drafted Cohabitation Agreement usually contains a clause stating that it will automatically convert into a prenuptial agreement (marriage contract) if you decide to marry in the future.
Can we write the agreement ourselves and get it notarized?
While you can draft it yourselves, a simple notarized piece of paper is incredibly easy to challenge in court. Without full financial disclosure and certificates of Independent Legal Advice, a judge may rule the contract invalid.
Can we include rules about child support?
No. You cannot use a domestic contract to opt out of paying child support or to set amounts that ignore the federal guidelines. Child support is the legal right of the child, and the courts will always prioritize their best interests.
How long do we have to live together to be common-law?
For the purpose of claiming spousal support under New Brunswick family law, you generally must live together continuously in a conjugal relationship for three years, or for one year if you have a child together.
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