Marriage contracts, separation agreements and cohabitation agreements are all intended to deal with the rights and obligations of couples during cohabitation or upon separation or divorce, but they do not cover all of the same issues and should be reviewed by an experienced family lawyer.
As we explain here, a marriage contract (also known as a pre-nuptial agreement or prenup) can address any number of important matters between couples who intend on marrying, such as property division or spousal support.
These contracts are becoming increasingly commonplace for couples who want to protect themselves going into a marriage and may make a separation or divorce significantly less messy.
A marriage contract may cover issues relating to:
- Rights to pre-marriage property and other assets;
- Ownership of property purchased during the marriage;
- Protection from pre-marital debt, loans, and other financial obligations incurred by your spouse;
- Division of debt accumulated during the course of the marriage; and
- Variations to spousal support payments.
However, marriage contracts cannot generally:
- Outline which spouse will get custody of any children;
- Delineate terms of access to any children;
- Limit the rights of a spouse to live in a matrimonial home.
In order to be valid under the law, marriage contracts in Ontario must be made after both parties have made a full and frank financial disclosure. This means that it may be set aside if one partner fails to disclose significant assets, debts or other liabilities.
A separation agreement is another kind of domestic contract which can be used to decide how to deal with issues upon separation, whether you were married or lived in a common law relationship. Such agreements do not end a marriage, which must be done through a divorce, but can resolve some family matters when you separate.
A separation agreement can deal with issues relating to:
- Custody and access for children;
- Financial support, including spousal and child support; and
- How property will be divided.
To be valid, a separation agreement must be in writing, signed and witnessed.
Independent legal advice is not a formal requirement, but is recommended to prevent challenges to the agreement on other grounds such as understanding the nature and consequences of the agreement and duress.
The most common grounds relied upon to set aside a domestic contract are:
- Failure to disclose a significant asset or debt in existence when the agreement was formed;
- Failure to understand the nature and consequences of the agreement; and
- Any other ground upon which an ordinary contract may be attacked.
Couples in a common law relationship can sign a cohabitation agreement to protect their rights while they live together and when the relationship ends.
A cohabitation agreement can set out issues relating to financial and family matters, including:
- Who owns property purchased during co-habitation;
- How much support will be paid if the relationship ends;
- How property will be divided upon breakdown of the relationship; and
- Who will be obliged to move out of the home if the relationship ends.
However, such agreements cannot set out who will have custody or access to children upon breakdown of the relationship.
In order to be valid, a cohabitation agreement must be signed by both parties and a witness. Any change to the agreement must also be in writing and signed in front of a witness.
Both parties should seek independent legal advice and exchange financial information before signing a cohabitation agreement.
Separation and divorce are challenging for everyone involved. When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.
At Campbell Bader LLP, our team of exceptional family law lawyers offer cost-effective advice for couples considering a marriage contract and can help you draft an agreement that helps provide financial security, and peace of mind. Contact us online or at 905-828-2247. We look forward to speaking with you and going through this process by your side.