Marriage Contract and Cohabitation Agreement

This article will briefly outline what a marriage contract and cohabitation agreement is, and the benefits of utilizing such agreements when you are in a relationship, whether married or common law.  Essentially, both types of agreements are types of contracts that will vary the default family laws that are in existence.

Married Couples and Marriage Contracts
Married couples or couples that are about to marry who feel that the law does not suit their relationship can make their own arrangements with a Marriage Contract. In a Marriage Contract, you can decide what you expect from each other during the marriage. You can decide exactly how property will be divided if the marriage ends; it does not have to be divided equally. You can also describe how support payments will be made. Additionally, you can agree to make plans for the education and moral upbringing of your children, even if they are not yet born.

For example, in Ontario, the law treats marriages as an equal economic partnership. When you get a divorce in Ontario, the value of the property you and your spouse acquire throughout your marriage, and the increase in value of the property you brought into the marriage, will be divided according to the equalization formula set out in the Family Law Act of Ontario.   However, through a marriage contract that may have been in place prior to the marriage or during the marriage, you may be able to alter the amount of equalization or completely waive equalization.

However, there are certain issues that a marriage contract cannot address.  For example, the Ontario Family Law Act explicitly states that any provision in a marriage contract attempting to limit the rights relating to the matrimonial home is unenforceable.  Ontario law provides married spouses an equal right to stay in the matrimonial home regardless who is on title.   Where only one spouse is on title, the right to possession for the non-title spouse ends when they cease to be spouses (when they get divorced).

Another example of what a marriage contract cannot address is the issue of child custody and access.

Although most marriage contracts are entered into prior to getting married (commonly known as a prenuptial agreement), you can still enter into a marriage contract after you get married. The agreement must be in writing and signed by you and your spouse in front of witnesses who must also sign. It is also a good idea to obtain independent legal advice prior to signing a marriage contract.

Common Law Couples and Cohabitation Agreements
Common law spouses do not have the same rights as married couples to the equal division of property that is bought when they were living together nor do they have the right to divide between themselves the increase in value of the property they brought into the relationship. However, if you have contributed to property that your spouse owns, you may have a right to a part of it.  If your spouse does not agree to pay you back, you may have to go to court to get back your contribution.

If you are in a common law relationship, you can sign a Cohabitation Agreement to protect your rights. With a cohabitation agreement, you can spell out what your financial and family arrangement will be. You can agree on things like who owns the property you buy while you are living together; how much support will be paid and how property will be divided if the relationship ends. You can also decide on who stays in the home if the relationship ends.

With a cohabitation agreement, you cannot agree on who will have custody and access of your children when the relationship ends. In order for a cohabitation agreement to be legal, it must be in writing and both you and your spouse must sign it in front of witnesses. The witness must also sign the agreement. Once you have signed the agreement you must follow it. If later on you decide that you do not like the agreement, you can negotiate a change to the agreement, which also has to be in writing, and signed by both parties in front of witnesses. If you cannot negotiate changes and are now separated, you have to go to court and ask a judge to decide the issues.

Marriage contracts and cohabitation agreements are very important legal documents that can greatly impact your future. You should think carefully about your decision and speak to a Toronto divorce lawyer before signing a marriage contract or cohabitation agreement, in order to protect your rights.

For more information about a marriage contract or cohabitation agreement, or obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.

NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.

Helpful Resources:

Divorce and Separation
Family Justice Services
Child Custody and Access
Spousal Support
Child Support
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments
Child Protection
Child Adoption

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