What are the differences between cohabitation agreements and marriage agreements?
A marriage contract, also formerly referred to as a prenuptial agreement (“prenup”) is a type of domestic contact between two parties who are either already married or intend to marry in the near future. The marriage contract will set out how the parties agree that they will deal with issues relating to property and support, include how their property and debts will be divided, if their relationship were to break down. A cohabitation agreement is also a type of domestic contract, which is entered into by two parties who are merely cohabitating together and are not married at the time. A cohabitation agreement can automatically become a marriage contract in the event you later marry the partner you were cohabitating with if the agreement sets that out.
A party may consider entering into a marriage contract or cohabitation agreement for many different reasons, such as where they wish to protect certain assets that they own on the date of the marriage, or that they expect to inherit or obtain during the course of the marriage or where parties wish to limit or release one another from future spousal support obligations, should their relationship or marriage breakdown.
There are certain issues that a cohabitation agreement or marriage contract cannot address. For instance, neither agreement can predetermine issues relating to decision-making (formerly referred to as “custody”) or parenting schedules for children of the relationship. This is because parenting issues are to be determined in accordance with what is in the best interests of the child(ren) and cannot be pre – agreed to. A marriage contract cannot also not limit the right of either spouse to reside in the matrimonial home after they separated.
In order for a marriage contract or cohabitation agreement to be enforceable, it is important to exchange financial disclosure with your partner and for each party obtain independent legal advice from a family lawyer. This step is crucial, as under the Family Law Act, a domestic contract can be set aside where:
- One party failed to disclose significant assets, debts or other liabilities;
- One party did not understand the nature of the contract or the consequences of the contract;
- there was any fraud, duress, or undue influence.
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Written by Katie Gaboury, Associate Lawyer