Cohabitation and Marriage Agreements
What is a Cohabitation or Marriage Agreement?
In Ontario, we refer to “prenups” or “prenuptial agreements” as Marriage Contracts (if the parties are married, or plan to be married in the near future) or Cohabitation Agreements (if the parties are just living together). They are contracts entered into that outline what will happen if and when you were to separate in the future. They allow parties to minimize any dispute or animosity upon separation, by confirming fair terms of separation before it occurs.
Why would I want a prenup?
Minimize Risk - They allow you to plan for your future, and help protect you and your partner from potential risk.
Protect Assets – Ensure that your property (or equity in property) like a home, business, pension or other asset stays yours upon separation.
Protect your investment into a home – You might be investing more into the purchase of a jointly held home than your spouse. Without an agreement, you may not be entitled to any credit for your larger investment.
Protect your estate plan – This is especially important if you are getting re-married and you have obligations to your former spouse or children from a previous relationship.
Have some certainty if you are not getting married – The laws regarding property division are different when you have lived together than when you are married, and they are evolving. An agreement provides some certainty.
To protect your income – You can include a spousal support waiver or a fixed timeline for payment of support so you know in advance if you will have to pay support, and if so, for how long and how much.
What are the key parts of a Cohabitation Agreement or Marriage Contract?
When trying to fix the consequences of a relationship breakdown in the future, disclosure and clarity are key. Courts are very critical of agreements where it was not clear that the parties understood each other’s assets and debts at the time of signing, or if it is clear that one or both of them did not understand their rights under the law upon separation. As a result, it is key to be sure that each party is able to speak to a lawyer and get advice about their rights before signing, and that full disclosure is exchanged.
Full disclosure includes the exchange of tax documentation like Notice of Assessments and Tax Returns, current pay information, and statements for all assets and debts owned or owed by the parties as of the date of the Agreement. A summary of these amounts should be attached to the agreement to show that this information was exchanged at the time. Without these elements, your agreement may be at serious risk of being overturned in family court in the future.
Does having a Marriage Contract or Cohabitation Agreement mean I am dooming my relationship?
Absolutely not. On a regular basis, Pamela Biron hears from clients that they had no idea what the law was before living together and/or getting married, and that people wished they had that information to protect themselves from the start. We prepare in many other ways when entering into a relationship - find a new place to live, planning a wedding, but often times the important conversations about financial status and what you expect long term is not reviewed before diving in. Love is wonderful, and hopeful, and the goal is that you create an agreement and never have to use it. People pay tens of thousands of dollars over their lifetime for life insurance, car insurance, home insurance, with the hopes that they never have to make a claim. A Cohabitation Agreement or Marriage Contract is like insurance - something to have just in case.
Pamela Biron believes one of the smartest things you can do is sit down with a lawyer in advance of marriage or cohabitation to obtain legal advice with respect to the relationship, so you can understand what you are signing up for. She welcomes appointments for pre-marriage or pre-cohabitation advice. Contact Us to set up an appointment to secure your assets and income in the case of future separation.