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| Domestic Contracts are signed by couples who want to agree upon a variety of issues at different stages of their relationships. The Family Law Act has various sections related to Domestic Contracts, of which there are three categories: cohabitation agreements, marriage contracts and separation agreements. These contracts must be in writing and must be signed by each party and witnessed. Like other contracts, the parties to these contracts must each be at least 18 years old and must have the mental capacity to contract.
People who sign Cohabitation Agreements and Marriage Contracts (sometimes referred to as Prenuptial Agreements or “Prenups”) usually do so to deal with financial matters between the couple while they live together and/or if the relationship breaks down. Although nobody wants to think about a possible break up when the relationship is doing well, these agreements just as often help couples maintain positive relationships by outlining what each person expects.
If you have assets or income to protect, or if your partner raises the issue with you of signing a Domestic Contract, you need the independent legal advice of a Zeidman family lawyer to help you understand what’s at stake in negotiating and signing a Domestic Contract. |
| Cohabitation Agreements |
| A couple who are not legally married but who are cohabiting or who intend to cohabit with one another can sign a Cohabitation Agreement. This is governed by section 53 of the Family Law Act. The term “cohabit” means living together as spouses whether you are legally married or not. If a couple who signed a Cohabitation Agreement subsequently gets legally married, the Agreement automatically becomes a Marriage Contract by operation of section 53(2) of the Act. |
The types of issues people commonly deal with in Cohabitation Agreements include:
- obligations for financial contributions or expenses during the relationship
- ownership and/or division of all property and assets, or specific assets
- obligations for separate or joint debts
- options to purchase or sell specific property and assets
- obligations for financial support
- what happens if a spouse dies
- the right to direct education of children (but not the right to custody or access)
Zeidman family lawyers can help you prepare a Cohabitation Agreement to deal with these issues, or we can help you understand an Agreement that your spouse is proposing.
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| Marriage Contracts |
| A legally married couple or one who intends to get married can sign a Marriage Contract. This is governed by section 52 of the Family Law Act. A Marriage Contract can deal with the couple’s rights and obligations during the marriage, after separation, in the event of an annulment, or if one of the spouses dies.
A Marriage Contract cannot limit rights of possession to a Matrimonial Home or other rights to a Matrimonial Home outlined in Part II of the Act. However, a Marriage Contract can deal with certain ownership or division issues related to Matrimonial Homes. For example, a Marriage Contract can exclude the value of a Matrimonial Home in whole or in part when calculating a division of assets on separation, if that is what you want.
The types of issues people commonly deal with in Marriage Contracts include:
- obligations for financial contributions or expenses during the marriage
- ownership and/or division of all property and assets, or specific assets
- obligations for separate or joint debts
- options to purchase or sell specific property and assets
- obligations for financial support
- what happens if a spouse dies
- the right to direct education of children (but not the right to custody or access)
Zeidman family lawyers can help you prepare a Marriage Contract to deal with these issues, or we can help you understand a Contract that your spouse is proposing.
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| Separation Agreements |
| A legal separation for a married or cohabiting couple occurs if there is no reasonable hope of reconciling the relationship. It only takes one person to come to this conclusion for there to be a separation. It is not necessary for you and your spouse to live physically in separate residences; a separation can occur if you and your spouse are living independent lives even in the same home.
Separation Agreements are the most common Domestic Contracts. Under section 54 of the Family Law Act, Separation Agreements can deal with any matter in the settlement of a couple’s affairs, including custody and access to the children and including possession and other rights under Part II of the Act. Please see our Separation Checklist for the types of issues commonly dealt with in Separation Agreements.
Separation issues are increasingly complicated. Division of spouse’s pensions as assets, imputing income for support purposes, depletion of assets or income before and after separation, and establishing detailed and appropriate custody and access provisions are just some examples. It’s crucial for you to have the right lawyer to help you through the process, to avoid mistakes, and to protect your rights and/or your children.
Zeidman family lawyers can help you through the process of negotiating a Separation Agreement to deal with some or all of the outstanding issues between you and your spouse, whether you have already verbally agreed on some issues or not. We also can help you understand whether an Agreement proposed by your spouse is fair in the circumstances.
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| Setting Aside Domestic Contracts |
| Any Domestic Contract that has provisions related to the right to direct education or moral training of children, or custody or access issues, is subject to the court’s discretion to disregard such provision if it is not in the best interests of the children (see section 56(1) of the Family Law Act). In the same vein, any clauses related to child support are subject to the court’s discretion to disregard it if it’s unreasonable in light of the Child Support Guidelines.
Even if a Domestic Contract meets the technical requirements of the Family Law Act, the Act empowers a court to set aside a Domestic Contract (i.e. declare it to be invalid) upon receiving an application to do so. There are three grounds under section 56(4) of the Act for setting aside a Domestic Contract:
- a party didn’t disclose to the other party significant assets or debts that existed when the contract was prepared;
- a party didn’t understand the nature or consequences of the contract; or
- for grounds available under general contract law (for example: duress, undue influence, repudiation, unconscionable, lack of capacity, etc.).
Section 33(4) of the Act also empowers the court to set aside provisions of an Agreement related to spousal support or a waiver of spousal support on three grounds:
- the provision results in unconscionable circumstances;
- the provision results in a prospective support receiver having to rely on social assistance; or
- if there is default in support payments when the court application is filed.
Given the court’s power to set aside all or part of a Domestic Contract, you should ensure that things are done properly when you have an Agreement prepared. Zeidman family lawyers can help you through the process and ensure that your rights are protected.
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Thank you so much for taking my case. When I first came to you, I was in such a deep hole I thought I would never get out. Other lawyers refused to take my case, but you agreed to step in and got me an order for support when others said it wasn’t possible. I was beyond shocked when you were able to get me the settlement within a few months that I had been after for years. I can’t thank you enough for all your great work.
I wanted to send this card to thank you for all your hard work during my divorce. You were always there for me (only a call or email away), and you gave me the confidence to fight for my rights and for my children. We all thank you for getting us the closure we wanted and for helping us set the stage for bright futures.
Initially, I was concerned that hiring a lawyer would only increase the stress and expense of my divorce. However, you put me at ease right from the start with your frank approach and “telling it like it is”. You were always accessible and always came up with ideas to help resolve things instead of creating more conflict whenever roadblocks appeared. I wanted to thank you for candour, the results, and for helping me get on with my new life.
Mr. Zeidman, in the three years since my separation, I had two other lawyers, neither of whom was able to make much progress with my custody and property division case. But when you agreed to be my lawyer, things changed. By shifting the focus on my children and their best interests, you were able to get me sole custody, support, and a fair equalization payment shortly followed. You knew when to fight, what to fight about, and how to persuade my husband, his lawyer and the judges – and throughout all of it, you were always encouraging and supportive. I am forever grateful for your services.
Mr. Zeidman, you and your staff were professional and extremely supportive to me throughout my custody battle for my children. Thank you for helping me get my children back and for being so kind the whole time.
I was scared to go to court, and I was prepared to settle for almost anything just to avoid it. You told me that my husband knew that, and he was using that to try to get me to agree to a “lowball” offer. You explained my options, their advantages and disadvantages, and you helped me get over my fear of court by demystifying the process and giving me confidence in my case. When we went to the Case Conference and I saw how the judge agreed with your assessment, my confidence grew even more. Because of you, a settlement was reached that gave me and my children much more than I expected was possible. Thank you for your kind words and your efforts. I would recommend you to anyone who is going through a divorce, and I have already referred two of my friends to your office.
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