Toronto Domestic Contracts / Agreements
There are various agreements available in family law to set out the rights and obligations of parties during the relationship and following the breakdown of relationships. Agreements such as cohabitation agreements (when parties are unmarried and living together), premarital/marriage agreements (also known as prenuptial agreements), and separation agreements can be very useful tools in giving parties a roadmap of how to conduct their affairs during relationships and following a break up. Amongst other matters, these agreements can clearly outline the ownership and division of property, parenting and custody scenarios, spousal support and child support obligations.
At our firm, we encourage the draft of cohabitation agreements or marriage agreements and we view the concept much like an insurance tool. In the event of a breakdown of a relationship, such agreements can allow a couple to foresee, and in turn, execute an amicable resolution to matters after separation and create a sense of calm in an otherwise very upsetting time in one’s life.
If you are considering moving in with a partner, it is important to have a cohabitation agreement in place, setting out your rights and obligations to one another. In family law, if you reside with one another for a period of 3 years you will be deemed to be a “common law” couple. This means that after the 3 year mark, one of you may be liable to the other for spousal support. Although non-married couples in Canada do not have property rights against one another, in some circumstances if you own property, your partner with whom you cohabit may gain some rights to property that you own, under equitable law, or laws related to fairness. For example, if you have resided with your partner in a house you own, and your partner has taken part in upkeep of the home, renovations, or made some other contribution over a length of time to the home, without an agreement in place, your partner may be able to advance a “constructive trust” claim, claiming some right to the value of your home. These claims are complicated and it is important that you have an agreement in place setting out your rights and obligations to one another prior to marriage and on the breakdown of your relationship. Should you decide to get married at some point after entering into a cohabitation agreements that agreement will then be deemed to be a marriage agreement, or if significant aspects of your relationship have changed you, you can renegotiate a marriage agreement. Contact our firm to speak with one of our Toronto cohabitation agreement lawyers regarding your marriage agreement needs.
If you don’t already have a cohabitation agreement and you intend on marrying, a marriage agreement may be appropriate. Marriage Agreements are the same type of agreement as a prenuptial agreement. Marriage agreements can be prepared before a couple marries, or after, in which case the agreement becomes a postnuptial agreement. If you have property to protect or wish to release spousal support obligations or set out your spousal support obligations in advance, it would be a good idea to enter into a marriage agreement in advance of your marriage ceremony.
Marriage agreements much like cohabitation agreements set out the rights and obligations of a couple to one another in the event of a breakdown of the relationship and subsequent separation. They can set out how a matrimonial home (the home you reside in during the marriage) can be treated after the breakdown of the relationships, and how to deal with your individual assets in any way you want. There are certain rights that cannot be contracted out of in a marriage agreement, such as the right to remain in a matrimonial home after the breakdown of a relationship and until certain obligations under your agreement have been met.
As married couples or common law (after 3 years of living with one another) couples may have support obligations to one another should a cohabitation or marriage end, marriage agreements are also often used to outline what support obligations couples may have to one another after the breakdown of the relationship. Some couples choose to release all obligations to one another, meaning they agree that neither party is to pay the other any spousal support no matter what happens in the future, and others may choose a specific amount if a set of circumstances are present, for example the couple have children and one parent stays home to parent the child full time while the other works full time. Contact our firm to speak with one of our Toronto marriage agreement lawyers regarding your marriage agreement needs.
If a couple has not entered into a cohabitation agreement or a marriage agreement, it will be important to promptly commence the negotiation of a separation agreement after the breakdown of a relationship. Such agreements contemplate how property can be divided between the parties, set out custody and parenting schedules, and outlining support obligations. There are a myriad of ways these agreements can be prepared to be legally enforceable or acceptable under the law and it is important that you consult a lawyer before embarking upon any agreement with your spouse verbally or otherwise.
These agreements are complicated and our advice is to always prepare such agreements between you and your separated spouse through the assistance of a lawyer and have full and independent legal advice before signing such witnesses. Separation agreements prepared through online resources or drafted by the parties themselves, seldom meet the requirements under the law and are often subject to expensive court litigation which may cost you much more in the long run, if you do not consult with a lawyer. You should not prepare such documents without the assistance of a lawyer, as in doing so, you could create obligations to one another that may have either been negotiated in a different manner by a lawyer, or may not have automatically existed. Finally, agreements entered into without independent legal advice of a separate lawyer for both parties, and those entered into without sufficient financial disclosure, carry the risk of being set aside by a court months or even years later. Contact our firm to speak with one of our Toronto separation agreement lawyers regarding your separation agreement needs.