There is no doubt that we have recently witnessed a steady rise in the general public‘s interest and use of marriage and Cohabitation Agreements. Marriage and Cohabitation Agreements were originally recognized in the sweeping statutory changes heralded by the Family Law Reform Act (March 31, 1978). The statutory enactments which originally validated domestic contracts have followed through to our current Family Law Act (part IV specifically section 5). as the then-Attorney General Roy McMurtry commented on the original purpose of these enactments: “to allow couples to cut their own matrimonial fabric “.
Perhaps some contributing factors explain this steady rise in popularity. Moreover, these features combine with the ever-increasing and solid attraction for ‘mediation’ as the most appropriate method for creating consensus and achieving agreement.
Firstly, let’s be clear about some of the individual characteristics in common attributes of these two distinctly different types of domestic contract. The distinguishing feature is that a Marriage Contract applies to a recognized (or intended) marriage in the actuality of the same parties consistent with their contemplated attainment of the legal status as ‘spouse’ within the meaning of Parts 1 (property).
A Cohabitation Agreement is where the parties are not married but the agreement may similarly extend to other statutory regimes and case law with respect to their property and /or spousal support arrangements. A properly construed Cohabitation Agreement will become a Marriage Contract upon the subsequent marriage of these same parties by operation of law (e.g. FLA 5.53 (2)) Subject to certain statutory and other criteria (e.g. setting aside of a domestic contract) these agreements can modify or discharge rights and obligations as may otherwise be applicable in law.
Essentially, people can choose to carry their own domestic regime from the law-model. (which would otherwise arise under statute and case law) In certain areas you can choose “to opt out “; in other words, you can pre-populate your own settlement upon a potential separation (and/or such other triggering event ) which would not otherwise apply in the same circumstances but for this valid and subsisting agreement.
From the outset, we should make special note of some overriding provisions which govern substantive restrictions affecting these types of domestic contract.
Mediation participants will learn that there are some legal subjects that they cannot include in their agreement. Notably, in the area of children; s.53 (1)(c) specifically excludes custody and access determinations. This relates to the governing paramountcy of the courts and its inherent parens Patria jurisdiction based on the best interests of children. So the attempt to limit the foreseeable jurisdiction of the court particularly with respect to a future plan is out of bounds. This is the preserve of a then-current parenting plan in a post-separation context of a Separation Agreement (s. 54 (d)) or a child-related determination at that future time on the merits. An important prohibition is contained in s. 52 (2).
Let’s focus on the topic of a waiver or release of a future right of shared ‘possession’ of a matrimonial home. This position bears specific reference to the statutory connection with their principal residence during the term or period of cohabitation as a marital home ( as interpreted to be a matrimonial home ) within the purview of the Family Law Act Part II.
These legal concepts of “possession “(referencing exclusive possession)and the “matrimonial home” are separate and distinct from property within the meaning of the Family Law Act part 1.So, we can deal with property arrangements (e.g. value; fair market value; financing; refinancing; net family property; appraisals; listing on sale arrangements and Estates)but not exclusive possession per se. Looking into substantive details, both types of agreements are structured to come into effect upon similar circumstances; often referred to as triggering events these typically include:1)separation 2)notice of separation 3)constructive separation e.g. nursing home&4) death of a party however people can envisage other foreseeable circumstances or future dates which makes sense to them in organizing their own arrangements.
Nigel Macleod and Graeme Fraser
LL.B, AccFM (OAFM)
Adv. Pract. (ACR) (APFM)