Until modern times, the common law did not recognize most domestic (marriage and divorce/separation) agreements as contracts because certain elements required by law are missing, e.g. consideration. However, domestic contracts are now recognized in Ontario by legislation.
Marriage Agreement/ Cohabitation Agreement
By law, married or cohabiting couples can enter into an agreement on their rights and obligations under the marriage/cohabiting period, as well as their rights upon separation or the dissolution of the union. These rights and obligations can include:
- ownership of property (certain limitations apply),
- support obligations,
- the children’s education,
- custody and access.
In reality, for different reasons, most people do not have marriage agreements. Perhaps most people think their marriage or cohabitation will work out. Another reason may be that it is difficult or impossible to foresee what properties will accumulate during the period of the union, or how many children that the couple will produce.
Separation or Divorce Agreements
The laws on separation and divorce are complicated in Canada because of our constitutional structure. In short, different laws apply to separation and divorce. Fortunately, these laws do not differ much in substance.
In general, the separation and/or divorce agreements are very similar to the marriage or cohabitation agreements mentioned above, and they can include:
- ownership of property (certain limitations apply),
- support obligations,
- the children’s education,
- custody and access.
The Child Support Guideline
When you are entering into a separation or divorce agreement, you have to be mindful that these agreements are subject to a legislation called “child support guideline”. This guideline sets out the minimum amount of child support that a non-custodial parent (i.e., the one who does not live with the children) must pay. The amount set by the guideline (called “table amount”) is generally seen as the lowest amount payable.
Factors and Considerations
The authors of Domestic Contracts^ provided the following non-exhaustive list of factors that should be considered when drafting a marriage contract:
BACKGROUND
1. Name of each after marriage.
2. Disclosure of all significant income, assets and liabilities.
3. Description of marital status, current children.
4. Reasons for contract.
5. Special considerations.
6. Whether children contemplated.
7. Value of “Net Family Property” on marriage.PROPERTY
8. What property will be exclusively owned?
9. What property will have shared ownership?
10. How will ownership be established?
11. How will shared property be divided on termination of marriage?
12. Will business interests be treated specially?
13. Will one spouse have the right to make any claim against the property of the other?
14. How will expenses be shared for it?
15. Who will own it?
16. Can one “buy into” it if other owns it?
17. What happens to home on termination of marriage?18. Will there be buy out provisions on termination?
19. If it is solely owned do you wish the right of the non-owner to be diminished or eliminated?
DEBTS
20. Which debts are to be mutual?
21. Which debts are to be sole?
22. Special provisions for guarantees.
23. How are debts divided on termination of the marriage?CHILDREN (IF ANY)
24. Are there to be clauses about their upbringing?
25. What name on birth?
26. Is there to be the right to change child’s name?
27. Obligations to support during cohabitation.
28. Formula for support on separation.
29. Restrictions on permanent removal from place of residence if separation occurs.SPOUSAL SUPPORT
30. Are there any circumstances when there shall be none?
31. Are there any circumstances in which there will be support payable
32. If support is to be payable, are there terms to limit duration and amount?
33. Will support automatically vary with the cost of living?
Of course, the factors above are not meant to be “one size fits all.” When you’re contemplating entering into a marriage contract, it’s important to consult a lawyer so that your interests are adequately protected.
Services Offered
For domestic agreements, I offer the following services:
- Property division,
- Custody/ access agreement,
- Negotiated support amount,
- Upbringing of the children,
- Independent legal advice on the merits of the contracts (When the other side drafts the contract, I will review the contract for you to see if it is OK.),
- Opinion letters on foreign marriages and divorces,
- Opinion letters on agreements made outside Ontario.
If you have something else in mind, please feel free to contact me. I will make effort to accommodate your requests.
PSWLaw drafts marriage contracts and prenuptial agreements tailored to your unique needs.
#R.S.O. 1990, c. F3.
^ Hugh G. Stark & Kirstie J. MacLise, Domestic Contracts: a comprehensive guide to marriage, cohabitation and separation agreements in British Columbia and Ontario, looseleaf (Toronto : Carswell, 1986-2003) at 274.
PSWLaw drafts domestic contracts tailored to your unique needs.
Please Note: This article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. Legislation referred to may have been amended or repealed since the publication of the article.
