Are you planning to buy a home and to put in more of the down payment than your partner? Will you be making higher monthly payments than your partner? If you are, how can you make sure your extra contribution is considered if you break up?
Protection for married couples
If you’re married, the law provides certain protections. The family patrimony, created when the marriage begins, is a good example of this. The family patrimony requires the spouses to share equally in the value of the family’s homes, furnishings, vehicles used by the family and money accumulated in a retirement plan during the marriage.
However, some property isn’t included in the family patrimony, including gifts and inheritances. If necessary, you can ask your partner to sign a document acknowledging that your higher down payment comes from a gift or inheritance.
If you’re married, you’ll also have a say if your spouse decides to sell or mortgage the family home. To ensure your home isn’t sold or mortgaged without your permission, you must register a declaration of family residence at the land register. For example, this declaration allows you to have the sale of the home cancelled if you didn’t agree to it. The declaration of family residence protects you even if you don’t own the home.
Options for common-law partners
If you’re not married, it’s up to you and your partner to divide the value of your property if you break up. The law doesn’t tell common-law couples how to do this. It’s a good idea to decide ahead of time, while you are getting along, how things will be divided.
If the partners are co-owners
If both of you sign the deed of sale, then you are co-owners in the eyes of the law. This means your partner can’t sell the home without your permission.
Also, the general rule is that you both own the home in equal shares. If you want to have different shares, you can indicate this in an indivision agreement. Here are examples of what you can include in an indivision agreement:
- how to share payments concerning the home
- who will keep the home if you break up, and under what rules
- whether you will go to mediation, for example, in the event of a conflict with your partner
If only one partner owns the home
Sometimes, for various reasons, only one partner signs the deed of sale. In this case, only the partner who signed the deed owns the home. The other partner, who isn’t an owner, should have some sort of protection if they put in some money to buy the home.
The partner who doesn’t own the home but who contributed to the down payment can ask the other partner to sign an acknowledgement of debt. If the couple separates, this document can be used in court to prove the debt exists and to allow the partner who doesn’t own the home to recover some money. It’s important for the acknowledgement of debt to be signed and dated by the partner who owns the home. It will be even more difficult to challenge if it’s prepared by a notary.
A contract between common-law partners is another option to consider if you plan to pay part of the mortgage and other expenses involving the home. This contract can specify the obligations of each partner while you’re together and what will happen to the home in case you separate. The contract can also provide that the partner who owns the home must get your permission before selling or mortgaging the home.
Important! An acknowledgement of debt and a contract between common-law partners don’t give you the right to have the sale of the home cancelled if you didn’t give your permission. The only thing you can do is take legal action against your partner to get compensated.
You only have the right to cancel a sale if you become an owner by buying a share.
A notary or lawyer can recommend which documents would be most useful in your situation.