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With no cohabitation agreement, common-law spouses may or may not have rights to property

A cohabitation agreement can be an effective way for common-law spouses in Calgary to clarify their rights and obligations during the relationship and in the event that the relationship ends. Property division at the end of a common-law relationship is not guaranteed by the Matrimonial Property Act, so many common-law spouses decide to create cohabitation agreements for peace of mind and fairness.

One of our previous posts has more on the benefits of these agreements.

In the absence of a cohabitation agreement, it may still be possible for a common-law spouse to claim a portion of assets, though this isn't possible in every case. 

In order for a court to find that a common-law spouse has a right to the other spouse's assets, it must be shown that the assets are held in a "constructive trust." Such a claim may be successful if the spouse seeking a portion of assets can prove that the assets were acquired through a "joint family venture." A common-law spouse may also have a right to assets if he or she contributed in some way to the acquisition of them.

In deciding whether common-law spouses have engaged in a joint family venture, a judge may consider a number of factors, including whether the parties' assets and debts were integrated and whether the parties put forth mutual effort in acquiring property.

Keep in mind also that former common-law spouses can come to an agreement regarding property division without asking a judge to decide. In any case, it may be a good idea to speak with a family lawyer about negotiating a fair agreement.

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