Cohabitation agreements and marriage contracts: Do you need one?
Many have heard of the American term pre-nuptial agreement Popularized by the line “we want pre-nup!” in Kanye West’s 2005 smash hit “Gold Digger”, this optional marriage contract is often rejected due to the idea of mistrust.
In Ontario, prenups are called domestic contracts, which include cohabitation agreements, and marriage contracts. Perhaps more Ontarians should have one, after all, it can save couples a headache and a lot of money too. But what exactly are cohabitation agreements and marriage contracts?
Cohabitation agreements and marriage contracts: How are they different?
A cohabitation agreement is an agreement made by two (2) persons who are cohabiting or intend to cohabit and who are not married to each other. In the event the parties to a cohabitation agreement marry each other, the agreement becomes a marriage contract.
A marriage contract is an agreement made by two (2) persons who are married to each other or intend to marry. A cohabitation agreement and a marriage contract is an agreement in which the parties agree on their respective rights and obligations. Amongst other things, the cohabitation agreement and the marriage contract can settle the parties’ division of assets upon separation.
What happens without a cohabitation agreement or a marriage contract?
Without one, the law will dictate amongst other things, how a couple’s assets are divided when a separation occurs. Cohabitation agreements and marriage contracts can alter some of these rules. However, without signing a domestic contract, you may not be able to protect specific assets. Ultimately, you’ll have reduced control over how they’re divided.
Benefits of having a cohabitation agreement or a marriage contract
Cohabitation agreements or marriage contracts aren’t simply for the rich and famous. Additionally, they don’t have to be drafted out of suspicion and doubt either. In many cases, signing a domestic contract demonstrates care, affection and consideration for either spouse’s long-term future. A customized domestic contract carries the following benefits for each spouse:
Clarity and peace of mind should a separation or a divorce occur
Removes room for debate as contentious issues are pre-drafted
Avoids assets being considered joint property, helping to protect children from previous relationships.
What can and can’t be included in a cohabitation agreement or a marriage contract?
A cohabitation agreement or a marriage contract can be complicated. Learning what can and can’t be included in such agreements is key. Principally, it provides each spouse clarity and understanding. Above all, such agreements should always be drafted with honesty, fairness and rationality, and separate legal counsel for each spouse.
Cohabitation agreements and marriage contracts may cover, amongst other things:
Division of property upon separation or death
Property ownership (what is owned jointly and separately)
The right to direct education and moral training of children
Cohabitation agreements and marriage contracts don’t cover, amongst other things:
Custody of, or access to children
Clauses considered illegal or immoral
Deciding whether to sign acohabitation agreement or a marriage contract is complex and highly emotional. What works for you will depend entirely on your own individual circumstances. When you want to draft cohabitation agreement or a marriage contract in Ottawa, depend on Sicotte Guilbault for the expert guidance you require.
by: Karen Pelletier -
posted on: February 10, 2020