Domestic Contracts

In this section, we will review the basics with regard to:

  • Marriage Contracts
  • Cohabitation Agreements
  • Separation Agreements
  • The Requirements for A Domestic Contract
  • Setting Aside Domestic Contracts

Marriage Contracts

Two persons who are married to each other or intend to marry may enter into a contract in which they agree on their respective rights and obligations from the marriage in the event of separation, an annulment or dissolution of the marriage, or on death.  

The subject matter for a marriage contract can include:
1.    ownership in or division of property;
2.    support obligations;
3.    the right to direct the education and moral training of their children, but not the right to custody or access to their children; or
4.    “any other matter in the settlement of their affairs.”

The marriage contract cannot limit a spouse’s right to custody of or access to children of the marriage, nor can it limit the right to possession of the matrimonial home (note: possession is different from ownership of or interest in, which can be limited)

Parties wishing to enter into a marriage contract should do so either well in advance of the marriage or after it has taken place.  Marriage contracts that are entered into on the eve of a marriage may be later subject to challenge based on duress or emotional blackmail.  Full financial disclosure should be exchanged between the parties, giving each a complete picture of the other’s financial position.  

 

 

Cohabitation Agreements

Two persons who are cohabiting or who intend to cohabit and who are not married to each other may enter into an agreement in which they set out their respective rights and obligations during cohabitation, in the event of a termination of the cohabitation or on death.

The permissible subject matter for a cohabitation agreement is the same as a marriage contract:
1.    ownership in or division of property;
2.    support obligations;
3.    the right to direct the education and moral training of their children, but not the right to custody or access to their children; or
4.    “any other matter in the settlement of their affairs.”

 

Since there is no matrimonial home in a cohabitation (because there is no marriage) the home the parties live in while cohabiting falls under the rights of ownership.  Subject to the terms of any agreement or lease, the owning spouse can take back possession of the home at any time.

If the parties to a cohabitation agreement subsequently marry, the cohabitation agreement shall be deemed to be a marriage contract.  

As with a marriage contract, full and frank financial disclosure should be exchanged prior to entering into a cohabitation agreement, so that each party is aware of what they are either protecting or giving up.  Failure to exchange full financial disclosure may lead to successful challenges of the contract on dissolution of the relationship.  

 

 

Separation Agreements

Two persons who have cohabited in the course of a relationship and are now living separate and apart* may enter into an agreement in which they set out  their respective rights and obligations stemming from breakdown of the relationship. (*note: separate and apart can still mean under the same roof)

Separation agreements are the most common form of domestic contract and are used at the termination of a relationship by parties who wish to avoid litigation and who can settle their affairs by mutual agreement, usually with the help and guidance of their lawyers.  

Separation agreements can deal with all issues from the breakdown of a relationship, including:


1.    ownership in or division of property;
2.    support obligations;
3.    the right to direct the education and moral training of children;
4.    the right to custody of and access to children; and
5.    “any other matter in the settlement of their affairs.”

 

Of note, a separation agreement can deal with custody of and access to children, whereas marriage and cohabitation contracts could not.  Despite the fact that it can deal with the care of children, the provisions of a separation agreement must still ensure that the best interests of the children are accounted for.  An agreement that fails to do so is subject to being set aside by the Court.  

Separation agreements often contain much more detail and are far more specific than marriage or cohabitation contracts.  The parties to them are through the relationship and their individual assets and financial positions are known, allowing the family law legislation to be applied for a “final” resolution of the parties’ affairs.   

 

Requirements for a Domestic Contract

Apart from meeting the above subject matter requirements, a domestic contract or an agreement to amend a domestic contract must be in writing, it must be signed by both parties and witnessed

 

Setting Aside a Domestic Contract

Domestic contracts may be filed with a Court.  The Court then has the power to enforce, vary or set aside an agreement.  

Contracts entered into under duress, coercion or based on deceit or mistade are subject to being set aside or varied.

Failure to provide proper financial disclosure is also a grounds to set aside all or part of a domestic contract.

If a party did not understand the agreement, it may be set aside.  All parties to a domestic contract should obtain independent legal advice from a lawyer.  Ensuring that the other party has independent legal advice is in your best interest, as it can save you from a later claim that the other party did not understand the agreement.  Obtaining a signed certificate of independent legal advice from the other party at the time the agreement is signed is also a good practice.

Where the terms of an agreement are unconscionable (unfair and incapable of being enforced), a court will undertake an examination of how the terms were arrived at and ask why they should be enforced.

 

 

 

At Fitzgerald Family Law, we can assist you by negotiating, settling and authoring any of the above Domestic Contracts.  Give us a call to discuss your particular needs. (613)233-7285

 

 

Note: The information provided in this website is only intended as a guideline for understanding the basic principles of family law matters generally.  It is not to be taken as legal advice, nor relied upon in advancing or defending a specific family law claim.  Every case is different and in no way is the information provided to be taken as advice specific to your particular circumstance.  If you have questions relating to your matter specifically, please contact Paul Fitzgerald of Fitzgerald Family Law to discuss.