When people hear about contracts between partners, they often think of pre-nuptial agreements. However, there are many different types of domestic contracts that can be made between partners and spouses, that deal with various items that effect a couple’s everyday life.

What are Domestic Contracts?

Under the Family Law Act of Ontario, a domestic contract is defined under Part IV of the Act as:

“A marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement”

These terms are further defined in their own section of the FLA. A domestic contract and any agreements to change or end the contract must be made in writing, signed by both parties, and witnessed. All of these conditions must be met, otherwise the domestic contract is unenforceable.

Marriage Contracts

Marriage contracts are defined and governed under section 52 of the FLA. A marriage contract is a contract that two people enter into. They may already be married or intend on getting married, and they agree on their respective rights and obligations under the marriage or on separation, on annulment or dissolution of marriage, or on the death of one of the individuals. The rights and obligations can include the following:

  1. Ownership in property;
  2. Division of property;
  3. Support obligations;
  4. The right to decide the education and moral training of their children, but not the right to custody of or access to their children; and
  5. Any other matter in the settlement of their affairs.

Marriage contracts cannot limit a spouse’s rights to the Matrimonial Home, as the Matrimonial Home has special treatment under the FLA and is governed by Part II of the Act.

Separation Agreements

Separation agreements are defined under section 54 of the FLA. They are between two people who cohabited and are living separate and apart and agree on their respective rights and obligations regarding the following:

  1. Ownership in property;
  2. Division of property;
  3. Support obligations;
  4. Right to decide the education and moral training of the children;
  5. The right to custody of and access of the children; and
  6. Any other matter in the settlement of their affairs.

Cohabitation Agreements

Cohabitation agreements, which are governed by section 53 of the FLA are very much like marriage contracts, in that they deal with similar obligations and rights, including ownership in and division of property, and support obligations.

However, there are two key differences: the first is that a cohabitation agreement is made between two people who are cohabiting or intend to cohabit and who are not married to each other enter into an agreement where they agree on their rights and obligations during the period cohabitation, or when they no longer cohabit, or when one of the persons dies. The second difference is that these contracts do not affect the “matrimonial home” as the matrimonial home exists once the two people get married. As mentioned in a property division rules under the FLA do not apply to cohabiting couples, only married couples.

If two common law partners who have a cohabitation agreement decide to get married, their agreement can become a marriage contract.

A Paternity Agreement

A paternity agreement is often entered into if a man and a woman are not spouses, but make agreements with regards to:

  1. The payment of the expenses of a child’s prenatal care and birth;
  2. Support of a child; and
  3. Funeral expenses of the child or mother.

In determining whether such an agreement is valid, a court will have to consider whether it considered the Child Support Guidelines, and any related provisions that relate to child support. These types of agreements are governed by section 59 of the FLA.

Setting Aside Domestic Contracts

Domestic contracts are subject to overarching family law policies and judicial discretion. For example, the court can disregard a part of the domestic contract if, in the court’s opinion, it is not in the best interest of the child. This also applies to provisions in domestic contracts that deal with child support.

The court can set aside a domestic contract or a provision within it, if one of the parties makes an application asking the court to do so.

There are several situations in which the court can set aside part or all of the contract:

  1. If one of the parties failed to disclose significant assets, debts, or other liabilities, when the contract was made and entered into;
  2. If one of the parties did not understand the consequences of the domestic contract; or
  3. If the contract does not follow the provisions and rules of contract law.

There is a wide variety of options available to couples who wish to officially outline agreements as between themselves.  If you are interested in discussing a cohabitation agreement, a pre-nup, a marriage agreement, or any other domestic contract, the experienced and compassionate team of family lawyers at Borden Family Law is ready to help. We assist clients and advise on the often complicated nature of entering or interpreting domestic contracts. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system, the technical legal rules governing family law matters, and trial strategy. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you call us at 905.576.6090 or contact us below. Ask us about flat fees.