Cohabitation Agreements & Marriage Contracts

Posted on 20 February 2024 Back to News

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Cohabitation and marriage contracts are agreements between partners that set out the parties’ rights and obligations in the event of their separation. They are forward looking agreements and may be entered into at any time before or during cohabitation or marriage and set out what is to happen upon a breakdown of the relationship or marriage. A cohabitation agreement entered into prior to marriage automatically become a marriage contract in the event of marriage.

These types of domestic contracts can allow for partners to contemplate how the parties will divide property and support one another in the event they should separate. For example, these agreements allow for common-law couples to determine whether one should be reimbursed for payments made towards a home, or for married spouses to contract out of the equalization of marriage property, specify which assets will be included in the equalization process, and how spousal support may be calculated upon separation. Marriage and cohabitation agreements, however, cannot provide for decision-making responsibility of the children, parenting time, or a spouses’ rights to the matrimonial home under Part II of the Family Law Act.

A marriage or cohabitation agreement can help protect assets brought into a marriage or assets that have grown substantially during the marriage; they can provide protections and rights to unmarried or common law spouses that would otherwise be exclusively available to married couples; and finally, these types of domestic contracts can provide certainty to a relationships’ living situation, financial position, and reality upon separation.

Marriage or cohabitation contracts are domestic contracts under s.55 of the Family Law Act, which state that domestic contracts must be in writing, signed and witnessed in order to form a valid and enforceable agreement. These contracts are subject to the laws of undue influence, unconscionability, and duress. They may be highly scrutinized due to the emotional nature of the contract and the potential for an imbalance of bargaining power, and are often confusing, so it is crucial that parties obtain independent legal advice with respect to these agreements.

If you have any questions or concerns regarding your marriage contract or cohabitation agreement or if you would like to learn more about how to enter into a valid domestic contract, the Family law lawyers at HGR Graham Partners LLP can assist. .




The information in this article is current as of February 20,2024 and is intended for general information purposes only. Nothing in this article is intended to provide legal advice. Readers with concerns about how this affects particular situations or transactions should obtain the independent review and advice of legal counsel.

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