Ontario Family Law Podcast

33 - The Law of Marriage Contracts and Cohabitation Agreements


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33 - The Law of Marriage Contracts & Cohabitation Agreements

Family law can cause consequences to relationships that couples may not have contemplated. Marriage contracts (which are called prenuptial agreements in some US states) and cohabitation agreements can prevent common family law problems and are much more common than many people would suspect.  These agreements can take people out of the usual procedures for addressing legal issues during and after a marriage and avoid a lot of the controversial issues that cause fights and even long battles after separation.  But to have such an agreement hold up, and protect you and your family and also avoid difficult litigation in the event of a separation.  You have to follow the law that governs making marriage contracts and cohabitation agreements. 

What is a Marriage Contract? What is a Cohabitation Agreement?
•  Marriage Contracts are agreements made between two people who intend to marry or who are already married to each other.
•  Cohabitation Agreements are agreements made between two people who are cohabiting, or intend to cohabit and who are not married to each other.


In his episode of the podcast, family lawyer, Julie Tyas, gives a straightforward and easy to understand explanation of the law of marriage contracts and cohabitation agreements.  

What is the Effect of Marriage on Cohabitation Agreements?
•  Cohabitation Agreements automatically become Marriage Contracts if the parties marry.
•  We therefore ensure that if marriage is a possibility for one of our clients entering into a Cohabitation Agreement, that all clauses relevant to married couples are also included.
Purpose of Marriage Contracts and Cohabitation Agreements
•  Both types of domestic contracts govern the parties’ rights and obligations under the marriage or cohabitation, upon separation, annulment or dissolution of the marriage (or cessation of cohabitation), or upon death.
•  Opt out (of some, but not all) of the laws that would normally apply with respect to division of property, spousal support and many others that may arise on separation.


This episode is an enhanced podcast on iTunes, and slides to accompany what Julie is saying will appear on the screen of your iPhone, iPad, iPod, or computer as you listen to the podcast. To get to this Podcast on iTunes, click on the Ontario Family Law Podcast logo above.  The MP3 version, which is at the left, does not have those slides, but you see them to the right of the text on this page.

1. Ownership in or Division of Property
•  Exclude certain assets or liabilities from equalization or opt out of the equalization process altogether (common in cases where one or both parties have entered into the relationship with assets they want to protect).
•  Who will own what – during the relationship and on separation.
•  Process for how and when property will be transferred or sold
following a separation.
2. Support Obligations
Spousal Support
•  Who will pay and how much – during the relationship or on separation.
•  Spousal Support release – Miglin v. Miglin
•  Be fair! Release may be inappropriate if the parties intend to or already have children. Child Support
•  Only if the agreement is reasonable having regard to the Child Support Guidelines.


People who work out a marriage contract before the wedding have given what marriage means more serious thought and go into the relationship and obligations knowing what they are getting into.  Because they have done that, the foundation of the marriage is stronger and separation and using the marriage contract is less likely.  Marriage contracts or cohabitation agreements have saved many relationships by addressing and removing issues that have caused the couple stress.


This podcast is essential listening for anyone getting married or considering moving in with someone. 


3. The Right to Direct the Education or Moral Training of the Children
•  Must not deal with any rights to custody of or access to children.
•  “Best interests of the child” test prevails, if challenged.
4. Any Other Matter
•  Provided they are not terms which are the parties are not permitted to contract out of!
–  Address custody or access arrangements.
–  Restrict either party’s right to remain in the matrimonial home on
separation.
–  Authorize one spouse to sell, mortgage or encumber a matrimonial
home before the spouses are divorced.

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© John P. Schuman 2012-2017