Whether living together, getting married or separating, a Domestic Contract can be the best way to protect yourself, your income and your property from a costly and destructive battle in court. Domestic Contracts are legal written agreements which deal with issues arising when couples live together, marry, separate or die. The primary focus is often on the division of the couple’s property and the amount of spousal support to be paid, if any. At Morgan and Phillips LLP, we have more than 30 years of combined experience in negotiating, drafting and contesting all types of Domestic Contracts. The law in Ontario encourages people to try to settle their own affairs outside of the court process. Domestic Contracts are generally respected by Ontario Courts provided that:
- they are fair to both people;
- both people know what exactly they are getting into by signing the agreement;
- each person provides full details about their finances;
- each person has enough time to properly consider and negotiate the terms of the contract; and
- both people receive or have the opportunity to receive independent legal advice.
If, however, there was dishonesty or undue pressure involved during the drafting and negotiating of a Domestic Contract, we can help you to apply for a court order to set aside an unfair agreement.
Moving in with a partner can sometimes bring legal obligations and consequences that neither person planned on, or even thought about. It is important to know your rights and what living together could mean for you and your property. When you live with someone certain rights and responsibilities might arise with respect to spousal support – whether you intended them to or not. In addition, common-law partners may over time become entitled to an interest in their spouse’s property – including any businesses or real estate the other partner might have an interest in.
A Cohabitation Agreement can help by setting out the terms that both partners agree are fair for dividing their property and payment of spousal support, if any, if the relationship doesn’t work out. The agreement will also say what will happen if the couple decide to marry. Terms may be included in the Cohabitation Agreement which provide for an increase over time in the amount of support to be paid or the sharing of property purchased during the relationship. Many people live in common law relationships their whole lives. Sometimes common law couples assume that the law considers them the same as married couples, but this is not the way it is in Ontario. There are big differences in property division laws for common law and married couples, which apply on either separation or death. A Cohabitation Agreement can help to ensure that both parties are treated fairly whether their relationship ends after only a couple of years together or after a lifetime.
Marriage Contracts or Prenuptial Agreements
A Marriage Contract (sometimes referred to as a Prenuptial Agreement) is a legal contract that people who are married or who intend to marry may enter into which deals with their respective rights and obligations on separation or the death of one of the spouses. The law in Ontario sets out rules for the sharing of wealth accumulated during a marriage and for the payment of support. If a couple who are getting married or are already married chose to opt out of some of these laws, they can agree on terms that are fair to them. A Marriage Contract will usually deal with issues concerning property division, responsibility for debts, and the amount and duration of spousal support, if any. The contract may provide for different provisions in the event of the relationship ending with a separation or the death of one spouse
A Parenting Agreement is a written contract in which parents set out the terms of their agreement about the care of their children. Parenting Agreements can cover issues including:
- the children’s living arrangements;
- the children’s education, healthcare and religion; and
- the child support provisions.
Often parenting coordinators, family therapists or custody/access assessors will be involved in mapping out the details of the Parenting Agreement. Sometimes these agreements can be negotiated by these professionals working with the parents on their own. At other times the parents’ lawyers are also involved in the negotiation and drafting of the Parenting Agreement.
When a relationship ends, the law sets out a framework for the division of property, payment of spousal support and child support and care and custody of the couple’s children. Ontario law also allows common law and married couples to agree between themselves on a settlement they both agree is fair in a Separation Agreement. A Separation Agreement can deal with issues such as:
where the children will live and the terms of custody and access of the children;
who will pay family debts;
how much support will be paid;
how the property will be divided; and
if the couple is married, which spouse will be allowed to live in the matrimonial home, and for how long.
In most cases, it is better for everyone involved if the separating couple can agree on how to settle the issues between them through a negotiated settlement. A battle in court is typically costly and damaging to the relationships of not only the couple, but all related parties. The terms of a Separation Agreement will often affect the separated spouse and his or her children’s lives for years. Ensure that you have a lawyer who specializes in the negotiating and drafting of Domestic Contracts on your side.
As with all types of Domestic Contracts, a Separation Agreement can be set aside if either party was dishonest or failed to provide accurate information about their income, property or debts when the agreement was made.