Couples bringing their lives together or taking them apart will find themselves dealing with many financial issues and potentially those regarding children. While the courts and legislation can provide certainty they may not be able to provide solutions that best meet couple’s particular needs, and an agreement couples can reach between themselves beforehand will usually be more satisfactory than an order imposed by a court afterwards.
There are three forms of domestic contract recognized under the Family Law Act in Ontario that, while they differ in who and what they apply to, are flexible enough to cover any couple’s situation.
Marriage contract, commonly known as pre-nuptial agreements, allow couples who are married or who plan to marry to deal with matters regarding property, support obligations, raising children and any other matters they see fit. Couples can agree to divide their property unequally, determine ownership of property, set or contract out of spousal support, and make arrangements for their children’s education and upbringing.
However, spouses cannot contract out of their rights in the matrimonial home—a spouse cannot contract out of their right to possession of the home or agree to have it sold or mortgaged without their consent. They also cannot make contracts about the rights to custody or access to their children.
Cohabitation agreements allow couples who are living together or plan to live together to deal with the same matters as a marriage agreement. These agreements are especially important for common-law couples to consider because there is no automatic legal entitlement to division of property upon separation, or for sharing of assets and liabilities. Nor does one arise however long a couple has been living together.
Another advantage of cohabitation agreements is that if a couple marries, the agreement automatically becomes a marriage agreement and continues to be valid.
Separation agreement allow for married or cohabiting couples who have separated to settle all of the same matters that can be settled in a marriage or cohabitation agreement, and also make child custody and access arrangements.
If you are considering entering into a domestic contract, it is important to make full financial disclosure of all assets and liabilities as failure to do so can result in the agreement being overturned by a court. If necessary, a domestic agreement can be filed with the Superior Court of Justice in Ontario and it can be enforced as if it had been made a court order.
Every couple’s situation is different and domestic contracts can be drafted to address practically any issue involving the couple. The lawyers at Alemi Law Group are experienced in the negotiation of domestic contracts and can advise you on reaching an agreement that can contribute to a couple’s harmony and security.
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