Family lawyers recommend that spouses have domestic contracts drafted as it can be useful in planning the many important details of a couple’s life together. The three main types of domestic contracts are cohabitation agreements, marriage contracts and separation agreements. The family law team at Lenehan Musgrave is able to assist in the preparation, drafting and signing of the contract that best suits your circumstances.
Cohabitation Agreements are used in situations where two spouses are living with one another but are not married. These agreements are extremely useful in setting out rights and obligations for couples who have not married and are residing in a common-law relationship. As we explored in our previous blog, what are the differences between common-law and marriage in the Canadian law?, what constitutes a common-law relationship and the rights and obligations that flow from that are not always clear. A cohabitation agreement can be useful in setting out these rights and obligations with regard to things like property ownership and spousal support.
Marriage Contracts are used when parties are either already married or about to get married. A marriage contract can set out the intentions of the parties regarding property ownership and support. A marriage contract would essentially detail how to deal with any issues while married and/or at the end of your relationship. Like a cohabitation agreement, a marriage contract cannot determine the custody and access of children or child support obligations. Terms of a marriage contract that are unduly harsh or fraudulent will likely not be upheld by the Court.
Separation Agreements can be used for both common law spouses and married spouses. This type of contract is necessary when two spouses have decided to separate. They can be useful in setting out the agreements between the parties with respect to all issues stemming from the marriage or cohabitation including custody and parenting, child support, spousal support and property and debt division. Separation agreements can also be used as a basis for granting a divorce.
Enforceable domestic contracts:
No matter what domestic contract is necessary, in all situations it is vital to consider the following tips in drafting a valid and enforceable domestic contract:
Any domestic contract needs to be in writing, signed by both parties and witnessed.
Full financial disclosure should be produced by both parties to the contract. This disclosure should include information on income, property and debts. This will assist in having a fulsome contract that covers all relevant issues and also will assist in the future when there will be no question whether both spouses were aware of all their rights and obligations at the time of the agreement.
Both parties to the contract should get independent legal advice. This means that each party will receive advice from a different lawyer who can look at all the financial disclosure and the agreement together and discuss with that spouse alone their rights and obligations and whether this agreement is fair and equitable for them to sign. Having independent legal advice will help strengthen your agreement in the future given that it will be harder for either spouse to claim that they did not understand what they were signing.
It is also vital to have evidence that both parties are not under pressure to sign the agreement before a certain date or to obtain a certain asset that pressure or duress will only harm the validity of the agreement. This is usually accomplished by having fulsome financial disclosure and independent legal advice.
It is also important to know that no matter how well a domestic contract is drafted, sometimes circumstances occur following the drafting of the agreement which will make it less enforceable. One such example would be a waiver of spousal support that was made at the beginning of the marriage. If this happens and then the couple remains together for 30 years, this waiver of spousal support may not be valid given the circumstances may have changed in which the spouse now has entitlement to spousal support. It is also necessary to note that all of these types of domestic contracts can be amended and revised should both parties agree and it is advisable that this be done frequently.
Domestic contracts are an effective way to plan and agree upon your respective rights and obligations with your spouse. No matter the stage of your relationship, they are useful. If you are in need of legal advice regarding domestic contracts or if you would like to have a domestic contract drafted, contact Lenehan Musgrave LLP a family law office in Dartmouth, Nova Scotia that we can offer timely advise on your domestic contract.
