Vaughan Family Lawyers for Prenuptial Agreements & Marriage Contracts
A marriage contract, commonly known as a prenuptial agreement or a prenup, is an agreement between two persons created when they intend to marry or during a marriage. A cohabitation agreement is an agreement between two persons who are cohabiting or intend to cohabit but are not married to each other. These agreements can predetermine many of the terms the couple intends to observe in the event of a separation, and in some cases, may address how certain issues will be dealt with during marriage.
Legal marriage creates certain legal entitlements and obligations upon the breakdown of the relationship. Despite certain requirements being set out in the legislation, there is still room for disagreement, which can lead to a long and costly divorce process. By creating a marriage contract or cohabitation agreement prior to or early in a marriage or cohabitation, the parties can protect themselves in advance with respect to most issues, making the separation process simpler to negotiate if and when the time comes.
At Bortolussi Family Law in Vaughan, our family lawyers create customized marriage contracts specific to the family’s unique circumstances, designed to avoid conflict and prevent litigation in the future. While many people associate marriage contracts with the extremely wealthy, a comprehensive agreement provides significant benefits for cohabiting and for married couples who wish to address only certain issues. Often, a property owned by one spouse before marriage which is going to become the matrimonial home, needs contractual protection if the desire is not to equalize the home with the other spouse.
A marriage contract is akin to an insurance policy. By taking the time to design a custom agreement at the outset of a relationship, it can save considerable stress and expense in the event of a future separation. It also has the added benefit of enabling a couple to set their terms when the relationship is healthy. This is much more productive than trying to do so after a relationship has broken down, amid the hurt feelings, resentments, decreased ability to communicate with the other partner/spouse and the stress that often come with a separation.
Understanding how the law applies to your relationship in the absence of a contract is important so that you can understand how and to what extent you can contract out of those laws designed for people who do not have a contract.
What Can Be Included in a Marriage Contract?
Marriage contracts can address most, but not all, issues that may come up in the event of a divorce. Since these agreements are often created well in advance of when they may be enforced, certain issues cannot be dealt with in the agreement because they are highly dependent on the family’s circumstances at the time of separation.
When crafting a marriage contract, the following issues can be set out in advance:
- Spousal support expectations, obligations, or release. Spousal support is generally determined at the time of separation, based on the Spousal Support Advisory Guidelines which calculate support based on the income of each party, and a number of other factors. However, spouses are free to set their own expectations with respect to support, including whether they would like to forego the obligation and the right altogether.
- Property division and equalization. The ownership, division of property and equalization of net family property can be time-consuming issues to resolve during a divorce. By setting out these expectations ahead of time, this can save considerable time and expense should the relationship break down in the future. However, it should be noted that the right to possession of the matrimonial home cannot be predetermined in a marriage contract and would not be enforceable.
- Any other matter in the settlement of their affairs.
What Cannot Be Included in a Marriage Contract?
A marriage contract cannot predetermine certain issues. This is because some matters are dependent on the best interests of the children at the time of separation. Circumstances change over time, and it can be impossible to predict where things might stand five, ten, or twenty years into the future. A court always has the authority to make orders contrary to the terms of these contracts that are in the best interests of the children. For this reason, the following issues should never be included in a marriage or prenuptial contract:
- Child support obligations or release. In most cases, marriage contracts are created before a couple has children, and even when they do have children at the time the contract is made, circumstances governing what is in the children’s best interests at the time of separation is a big unknown at the time the contract is made. Therefore, pre-planning support obligations would be impossible. The law is clear on a parent’s obligations to support their children, and so a contract cannot be used to escape this obligation. If a couple separates and they have children, the support obligations will be determined based on the family circumstances at that time in accordance with the Federal Child Support Guidelines.
- Parenting time or decision-making ability. Whether or not children are in the picture when the contract is created, setting out expectations regarding custody or access at the time of separation would be a futile exercise. The parental role post-separation is decided solely based on the best interests of the child at the time of separation. As a result, there is no purpose in contemplating this issue in advance, because circumstances could be wildly different by the time this issue becomes relevant.
- Possession of the matrimonial home. Married spouses each have an equal right to possess the matrimonial home in the event of a separation, regardless of ownership status. This means neither party can force the other to vacate the home in the absence of a court order or a written, dated, signed enforceable separation agreement. If a couple attempts to change this by including a clause in the marriage contract, the clause would not be upheld in court.
Contact Bortolussi Family Law in Vaughan for Skilled Drafting & Review of Marriage Agreements
The experienced and compassionate lawyers at Bortolussi Family Law skilfully draft prenuptial agreements, marriage contracts and cohabitation agreements for couples across the Greater Toronto Area, extending out to Mississauga, Brampton, Caledon, Whitchurch-Stouffville, Woodbridge, Maple, Kleinburg, Caledon, Concord, Vaughan, Bolton, Nobleton, Markham, and Etobicoke and all areas in between. Our family lawyers also regularly provide independent legal advice on these domestic contracts drafted elsewhere prior to signing.
Whether we are drafting an agreement or reviewing it, we take the time to listen carefully and attentively to your needs and objectives. Our primary focus is always on achieving your goals, addressing your concerns, and providing you with clarity, confidence and realistic options and recommendations. Our family lawyers will ensure your entitlements and rights are properly protected in a comprehensive domestic contract. To discuss your circumstances with a member of our team, please reach out to us online or by phone at 416-987-3300.