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Family Law

Your new spouse: A few things to consider

Right now, you feel like you never want to be part of a couple again. But you never know…maybe you’ll change your mind one day. And if that happens, is there any way to avoid repeating the same mistakes?

In this Infosheet, Éducaloi provides some hints that may help you avoid some of the legal problems frequently encountered when you live together with someone as a couple or when you separate.

I don’t want to remarry or enter into a civil union. Isn’t life much simpler for de facto (common-law) spouses?

Yes… and no! True, legal procedures for de facto spouses who separate are generally much simpler than for spouses who are married or in a civil union, but that’s only because there are fewer legal means available to settle issues between de facto spouses. It also depends on how complicated the issues are. A complex file involving child custody between de facto spouses can be longer and more difficult to resolve than amicable divorce proceedings.

On the other hand, the law and the matrimonial regime governing the married or civil union spouses will resolve certain financial aspects of living together, which is not the case for de facto spouses. De facto spouses must take extra steps to make sure their personal affairs are in order, for example:

• Making sure that both spouses’ names appear on the invoice if they both paid for a good. Too often, only one name appears on the invoice and it is very difficult for the other spouse to prove that she also contributed to buying the good.
  
• Anticipating what will happen to the house they purchased in co-ownership if one of the spouses dies or the couple separates (see the following question).
  
• Agreeing on how to compensate a spouse who looked after the children full-time for financial losses such as lost employment income and career advancement. The spouse who dedicated herself to the family for many years is not entitled to claim anything whatsoever from the other spouse in the form of support or a share in property.
  
• Discussing how to manage the family finances, specifically the expenses and investments.

Signing a cohabitation agreement is a good way for the spouses to avoid pitfalls and adequately protect themselves. The best time to enter into such an agreement is when everything is going well! A cohabitation agreement may contain various clauses and agreements, including for example:

• a list of the property owned by each spouse when they started living together, and the property’s value;
  
• the division of financial responsibilities, i.e., who pays what;
  
• what will happen to property purchased during cohabitation if the spouses separate;
  
• compensation for the spouse who stayed home to look after the children.

If I buy a house with my new de facto spouse, does it have to be registered in both our names?

If only one spouse’s name appears on the deed in the land register, that spouse can sell, rent, hypothec (mortgage), give, or bequeath it as he so pleases without the consent of the other spouse, even if it is the family residence. De facto spouses are not protected by the rules on the family residence.

But there’s more: the sales contract is the proof that the spouse is a co-owner, so if his name does not appear on the contract he has no rights in the property.

Sometimes one spouse contributes more to the down payment on the house than the other spouse or pays a greater share of the mortgage payments. Remember, though, that each spouse is assumed to own half the house unless the purchase contract says otherwise. The spouses should make sure the exact percentage each spouse owns is indicated in the purchase contract, for example, 40% - 60%, as well as what happens with the down payments if they separate or sell the house.

The spouses can also agree that one of them will have a “prior right” to purchase the other spouse’s share if they separate. Any such agreement should state the purchase price and a time period within which the spouse must make a decision.

If you are buying a house in co-ownership, it’s a good idea to discuss the above issues with the notary who is preparing the act of sale so she can incorporate the relevant clauses.

Should I sign a marriage contract if I want to remarry my new partner, or enter into a civil union?

It is a good idea to sign a marriage or civil union contract, especially if this is your second union. This way, you can choose a matrimonial regime other than the default one of partnership of acquests. Also, you can attach to the contract a list of the property each of you owned before the union, and the value of any such property. This document will be extremely useful should one of you pass away or if you separate, especially with respect to the rules on family patrimony.

What else can I do to avoid problems?

It is a good idea for spouses to make a will regardless of their marital status (de facto union, civil union or married).

Here’s an example to consider: A couple co-owns a house together and one of the spouses suddenly dies without a will. The deceased spouse is survived by a son from a past relationship. Under the law, this son is his legal heir, which means the son becomes co-owner of the house with the surviving spouse! Chances are, this is not what the spouses would have wanted…

You can consult a notary or a lawyer to learn more about the inconvenience caused to relatives if the spouse dies without a will. Remember that a will is completely confidential and can always be changed by the testator. It is a wise idea to periodically reread your will to make sure it still reflects your actual intentions.

A “mandate in anticipation of incapacity” is another useful document that can help avoid difficulties. This document enables a person to name someone to take care of her and/or administer her property if she becomes incapable of doing so herself, for example, due to an accident or illness such as Alzheimer’s.

Some final thoughts to consider:

• It’s best to manage your own affairs. You should avoid letting anyone, even your spouse, control your finances without at least checking up on things regularly.
  
• Don’t rely on general information regarding important subjects, like finances and law. It may be worth it to pay the fees to consult a professional.
  
• Finally, it is a good idea to discuss things with your spouse. It should not be taboo to talk about financial issues, and it is always better to have such discussions when things are going well!