Disclaimer: This article aims to provide educational information surrounding domestic contracts, such as marriage contracts or cohabitation agreements. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog.
Love is often seen as an unshakable force, yet there is also the need to be practical. That is where domestic contracts come in: they blend legal foresight and heartfelt commitment, shaping partnerships within Ontario’s legal framework.
Under Ontario law, there are different types of domestic contracts. You could have a cohabitation agreement or a marriage contract (which you may know as a prenuptial agreement).
This article will outline the difference between the two and what is required under family law. Of course, each relationship is different, and discussing the specifics with an experienced family law lawyer is vital.
What is the Purpose of a Marriage Contract or Cohabitation Agreement?
Marriage contracts outline financial arrangements, property rights, and potential spousal support in the event of a marriage dissolution. They help clarify expectations and protect assets brought into the marriage.
These contracts are not just a collection of clauses and paragraphs. They show a commitment to understanding, forethought, and mutual respect. They allow both parties to have clear expectations surrounding your relationship.
Marriage Contract vs. Cohabitation Agreement: Choosing the Right Fit
Similarities between Marriage Contracts and Cohabitation Agreements
Marriage and cohabitation agreements are legal documents that address financial matters, property rights, and potential obligations within a relationship. They serve as proactive tools, offering clarity and guidance in managing assets and liabilities, irrespective of the couple’s marital status.
Differences Between Domestic Contracts
The difference between marriage contracts and cohabitation agreements comes down to your relationship.
A marriage contract is typically crafted in contemplation of or following the marriage ceremony, explicitly outlining financial arrangements and responsibilities during the marriage. On the other hand, a cohabitation agreement caters to common-law couples, setting out similar financial expectations tailored to cohabitation dynamics.
As noted, married and common-law spouses are treated differently under The Family Law Act. For example, the equalization and division of property provisions under the Act are specific to married couples.
Cohabitation Agreement to Marriage Contract
Many couples initially draft a cohabitation agreement but later get engaged. Once you marry each other, your cohabitation agreement may become a marriage contract. This conversion streamlines the transition, allowing the existing legal document to extend its provisions seamlessly into the marital context. It ensures that the agreements before marriage continue to govern the financial aspects and obligations within the newly formed marital union.
Common questions about marriage contracts in Ontario
There are some common questions surrounding marriage and cohabitation agreements in Ontario.
Can Anything Be Included in a Marriage Contract?
There is a lot of leeway about what you can include in a domestic contract. However, two noteworthy limits on marriage contracts are:
- Children and Custody: Provisions related to parenting time or decision making responsibility for children, or support are typically not enforceable in marriage contracts. These matters are subject to judicial discretion and decided based on the child’s best interests.
- Matrimonial Home: While the financial aspects of the home might be addressed, limitations on the right to possess or live in the matrimonial home are generally unenforceable under The Family Law Act.
I’m already married or living common law. Is it too late to draft a Cohabitation Agreement or Marriage Contract?
Of course not! Married couples can enter into a marriage contract (post-nuptial) at any point during their marriage. Common law partners can enter into a cohabitation agreement at any point during their relationship, although most do when they move in together or purchase a house together. If you do not already have one, you may consider a domestic contract when you have significant assets, inheritances, or businesses you wish to protect.
Do Both Parties Need Independent Legal Advice for a Marriage Contract?
We highly recommend that both spouses seek independent legal advice when drafting or reviewing a domestic contract, but it is not a requirement. Having independent legal advice ensures that each party fully understands their contract.
Tenets of a Valid Cohabitation or Marriage Contracts
Crafting a legally binding cohabitation or marriage agreement requires adherence to essential principles that ensure both parties’ validity, enforceability, and fairness. These fundamental tenets form the cornerstone of a valid domestic contract:
It must be in writing
One of the fundamental requirements for a valid cohabitation or marriage agreement is that you must document it in writing. Verbal agreements, no matter how clearly understood between the parties, do not hold the same legal weight as a written contract.
Full and Complete Financial Disclosure
One crucial thing for a cohabitation or marriage agreement to be valid is that both parties must openly share all their financial information.
What does that include? It means each party should tell the other about everything related to money, like what they own (houses, cars, savings), what they owe (loans, debts), their earnings, and if they have any unique financial setups like family trusts or shares in any corporations.
This disclosure is vital. Failing to provide exhaustive and accurate financial information may result in the courts setting the agreement aside or invalidating it.
Absence of Duress
If someone signs an agreement under duress, meaning someone forced them or felt they had no choice, the agreement may not be valid. For instance, if someone was made to sign the contract just before their wedding day or was told their relationship would end if they didn’t sign, that may be considered coercion or undue pressure. A situation like this would undermine the integrity of the agreement.
Each party must sign the contract willingly, free from undue influence or coercion, to ensure it is valid.
The Agreement Must Be Witnessed
Witnessing the agreement is a procedural requirement for validity and documentation purposes. Unlike other areas of law, such as estate law, there are no restrictions on who may witness the signature of a marriage agreement or cohabitation agreement.
Preparing Domestic Contracts with Plat Simionati LLP: Family Law Services in Guelph
Drafting cohabitation agreements or marriage contracts demands expertise and meticulous attention to detail. At Plat Simionati LLP, our dedicated team specializes in providing comprehensive legal counsel and support for all your family law needs. We offer practical legal advice on how the law applies to your relationship and draft domestic contracts that address what is important to you. Contact our team today.