"Is a Marriage Contract or Cohabitation Agreement Right for Us?"

Updated: Dec 1, 2019

You are newly engaged and a date has been set.

Your time and energy are monopolized by wedding planning and perhaps a new home or new family members. Most people wouldn’t even consider jeopardizing their relationship at what many consider the crest of happiness with discussion of “what if…”.

"Pre-Nup" or Prenuptial Agreement?

“The term “Pre-Nup” or Pre-Nuptial agreement has been popularized in media and public discourse. It carries with it, a stigma of negativity and many feel that it denotes an outlook of doom and gloom for any new marriage.

In Ontario, the so called "Pre-Nup" is more commonly referred to as a Marriage Contract. Part IV of the Family Law Act governs Marriage Contracts and sets out the parameters around which they operate. Another similar type of domestic contract that many couples make use of within the confines of a romantic relationship is a “Cohabitation Agreement”.

It is crucial to address these concerns before formally getting married and ideally before cohabiting. Issues of duress and coercion arise beyond that stage which can affect the binding efficacy of the document.

Marriage Contracts, as many know, address issues that one may anticipate becoming problematic or contentious, should the marriage breakdown in the future. It fosters low conflict dispute resolution and often saves the parties a lot of time, stress and money, irrespective of a divorce occurring or not. The parties to a Marriage Contract may additionally deal with asset division, spousal support, living arrangements, property equalization amongst many other elements of a marriage.

Cohabitation Agreements govern many similar issues but within the context of parties residing together outside of wedlock.

The lesser known aspect of these contracts however, is that they often serve to crystallize the road map of a relationship before taking the legally binding step of matrimonial vows. The parties can set out a clear picture of the expectations both individuals have from each other and can dispel any concerns either may have. An example can be that one person may want their children to attend public school while the other may want their children to attend private, parochial, or even homeschooling which can all be deal breakers. Drafting such a contract need not be an unpleasant experience and can often reinforce the relationship by allowing for open communication and spurring joint discussion regarding estate and tax planning, future goals, child education and retirement savings as well as wealth management.

As a lawyer working within the matrimonial space, I often encounter litigants for whom the law provides unsatisfactory and even unfair disposition of a dispute upon breakdown of their marriage. A Marriage Contract allows the parties to create a bespoke arrangement, through which they may opt out of many statutory requirements that can lead to problematic results for their unique circumstance.

If you have any questions regarding Marriage Contracts or other legal issues surrounding matrimonial law, the team at Flak Law are happy to discuss your specific situation and provide a tailored approach to provision of legal services regardless of how complex or simple it may be.

Author: Terrence Reid, Associate

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