NOTICE TO READER
The answer to each question below is a brief summary for informational purposes only and is only applicable in the Province of Ontario. It is not meant to be legal advice. If you require information or advice as it relates to your individual circumstances you are advised to consult with your own lawyer or retain the legal services of Veena Pohani.
Lawyers love separation agreements because they are customized agreements negotiated between partners regarding all issues under the Family Law Domain. You can choose to opt out of the Family Law Act altogether giving the other party a greater share than 50% of the assets or less. Its entirely up to you.
Separation agreeemnts are a product of each spouse’s desire to settle their affairs reasonably, amicably and inexpensively. A separation agreement is one of the best alternatives to going to court because it is faster, cheaper and more complete than a court order but has the same enforceability as a court order.
How do domestic contracts work? Are they just as valid as court orders? If so why doesn’t everyone use them?
There are generally three categories of domestic contracts. Marriage contracts, cohabitation agreements and separation agreements.
A marriage contract is a written agreement that permits a couple who intend to marry to agree, in advance, on issues such as property division and support in the event that the marriage ends. If a person owns property that they wish to protect, or want to confirm that they will not be expected to support their spouse after they separate, then they may agree to terms that are incorporated into a marriage contract.
Cohabitation agreements are agreements signed before marriage. When spouses have entered into a cohabitation agreement and later get married, the Family Law Act states that the cohabitation agreement is deemed to be a marriage contract. If one or both of the spouses wish to change it, a new agreement must be prepared and signed.
Separation agreements are negotiated after a marriage or common law relationship has broken down. If there is no marriage contract, then all issues to be negotiated are fair game. This could include ownership of pets, jewellery, cottages, possession of the matrimonial home, custody of the kids, detailed access, the right to move, passport retention. Basically all issues that permeate the relationship are open to be negotiated.
If I get married again, should I prepare a domestic contract?
There are many reasons to use a domestic contract. The purpose of the domestic contract is to avoid, delineate, or customize rights, and obligations that exist in the legislation which you want to customize to your own tastes. For example, matrimonial litigation does not deal with ownership of pets. In a domestic contract you can discuss the ownership and visitation of pets without to your own preferences. You can split your grandmother’s cherished tea cup collection without having to spend a fortune having it valued.
If you marry your new partner, you may be required to pay spousal support and share the increase of the value of your assets during your marriage when you separate.
If you support your new partner while you reside together, even though you are not married, you may be responsible for spousal support when you separate.
When a couple separates, there are many issues that may arise. Many of these issues can be resolved—even before you marry or cohabit—if both spouses agree to enter into a marriage contract or cohabitation agreement. These documents are written legal agreements, signed by both spouses in the event that the relationship ends. They permit partners who cohabit or intend to marry to agree, in advance, on issues such as property division and support