Planning ahead
Our Family Law team can help you put family law agreements, also known as ‘domestic contracts’, in place that will work for you and withstand the test of time. Domestic contracts include cohabitation agreements, marriage contracts and separation agreements. These contracts set out the rights and obligations of you and your spouse during your relationship and/or upon a separation.
It is a good idea to talk with your spouse about financial expectations before living together (cohabitating) or getting married. If you decide that you want your rights and obligations to be different from those that automatically apply to married or common-law spouses, then entering into a domestic contract may be right for you. Your agreement is called a ‘cohabitation agreement’ if you and your spouse are not married, and a ‘marriage contract’, often referred to as a ‘pre-nuptial agreement’ or a ‘pre-nup’, if you and your spouse are, or are getting, married.
Common-law spouses can enter into a cohabitation agreement that specifically outlines what rights and obligations, including property division and support rights that both spouses will have as result of their relationship. The agreement can specifically provide that you and your common-law spouse will share property in the same way that married couples would, or alternatively, that there will not be any property sharing, or only property sharing, between you in the event of a separation. Married spouses can opt out of or alter the automatic rights and obligations, such as the entitlement to an equalization payment, by entering into a marriage contract. Find out more about Property Division and Support issues.
Separation agreements
Separation agreements are another important type of domestic contract that you and your spouse can agree to sign if you separate. The terms of a separation agreement will have long-term effects on your lives, and will generally addresses issues like custody of children and access to children (visitation), child support, spousal support and division of property. This includes matters like who will stay in the matrimonial home; who will pay any outstanding debts; how pensions or other retirement savings will be divided; and who gets the family pet. You can find more information on separation and divorce here.
Making your domestic contracts last
Ideally, your domestic contract will be a final and binding agreement, where both you and your spouse get what you need. But the reality is that if your agreement is not drafted properly or is signed under the wrong circumstances, you may be held to an agreement that does not reflect your real intentions, or your contract may be set aside by a court. If you are considering entering into an agreement, here are some important considerations to help make your agreement last.
Don’t be hasty
- It is important to take the necessary time to consider a domestic contract carefully and obtain legal advice before you enter into one. If you enter into a domestic contract too quickly, and without enough time to consider, you may be held to an agreement that you later realize does not meet your needs.
Put the agreement in writing
- A domestic contract must be in writing and signed by you and your spouse in front of a witness who must also sign the contract in order for it to be enforceable.
Ensure full financial disclosure
- It is important to make full and fair financial disclosure before signing a domestic contract so that you and your spouse can make an informed decision about signing the agreement. If you do not request disclosure, you may be left without recourse if you discover new information that would have changed your decision. Similarly, if you do not make full and fair disclosure to your spouse before signing the agreement, your agreement may be set aside if it is ever challenged.
Have it prepared by a lawyer and get independent legal advice
- When entering into a domestic contract, both you and your spouse should have your own independent legal advice. When the contract is being drafted, each party may have their own lawyer negotiating the terms of the agreement. A single lawyer cannot advise both spouses. While it is not recommended, if you choose to write your domestic contract yourselves, both you and your spouse should have your own lawyer look it over before you sign it. Obtaining legal advice reduces the chances of the agreement being set aside, but more importantly, it ensures that you know what you are agreeing to when you sign it.
