Marriage & Cohabitation Agreements

Marriage Contracts and Cohabitation Agreements

In Ontario, there are two main types of domestic contracts related to marriage and cohabitation, both of which are governed by the Family Law Act.

• Marriage Contract — This is a contract between two people who are married or who intend to marry each other. (This is often called a premarital agreement)
• Cohabitation Agreement — This is a contract between two people who live together or intend to live together but are not legally married.

In these documents, the parties agree to their rights and obligations both during the marriage (or cohabitation) and upon their separation or death.

In drafting your contract, AGB’s Ottawa team of highly trained family lawyers will work to protect your rights and reduce your risk while making sure you understand your obligations.

The Content Is Determined by Law

The content of a prenuptial agreement often includes provisions for the division of property, spousal support and conditions of guardianship for any children. Further, it may call for the forfeiture of assets as a result of divorce on specific grounds, such as adultery.

The Family Law Act sets out the criteria that must be met for a prenuptial agreement to be considered legally valid. Specifically, the law states the following:

• The prenuptial agreement must be in writing, signed, and witnessed;
• It must be based on complete disclosure of both partners’ respective assets, debts, and other liabilities;
• Each party must have had independent legal representation during the development of the agreement;
• There must be “equal bargaining power” between the parties. This means there can be no fraud, undue influence, duress, or unconscionable circumstances between them;
• The agreement must be clear and accurate; and
• The agreement must cover only those topics and matters that are specifically permitted under the Act.

If these requirements are met, it can generally be assumed that the prenuptial agreement will be valid and enforceable.

Courts usually uphold agreements that were freely negotiated and agreed to by both parties—no matter how unfair they may seem when circumstances later change.

(In fact, the Supreme Court of Canada has stated that while courts always retain the right to set aside or overrule an agreement that is “unconscionable,” they should otherwise be reluctant to interfere with an agreement that the spouses have freely and willingly entered into.)

It’s important to note the Family Law Act does not allow spouses to enter into an agreement relating to custody or access to the children. These matters are governed by separate and specific laws that focus on the best interests of the children.

Cohabitation Agreement Legal Guidance for Couples

A cohabitation agreement is a contract between two people who live under the same roof but are not legally married. AGB Lawyers offers guidance and drafting of cohabitation agreements in Ottawa, ON. The documents allow both parties to agree to their obligations and rights during their cohabitation and after their separation or death. The laws regarding same-sex marriage and cohabitation have drastically changed in the past two decades. Laws pertaining to couples in a same-sex marriage are the same as married couples. Our highly trained lawyers work with you to protect your rights while reducing your risks. We want you to understand your obligations with respect to your relationship. These contracts must be in writing, witnessed, and signed by the couple.

Advantages of a Cohabitation Agreement

Married couples automatically have claims to the couple’s finances upon death, while cohabitating couples do not have this same access, no matter the length of the relationship or if children are involved. Without a cohabitation agreement, many former couples suddenly realize they have no rights when the relationship ends. A cohabitation agreement provides security to both parties in the relationship. A cohabitation agreement offers a fair, legal solution instead of a lengthy legal battle or unequal distribution of assets. AGB Lawyers can help you better understand your personalized cohabitation agreement and answer any questions and concerns.