Marriage & Cohabitation Agreement Lawyer in Mississauga

The three domestic contracts

Part IV of the Family Law Act recognises three. A marriage contract (what most people call a prenup, though it can be signed during the marriage as well) is made by people who are married or intend to marry. A cohabitation agreement is made by people living together or intending to, and automatically becomes a marriage contract if they later marry. A separation agreement is made after the relationship has ended.

All three must be in writing, signed, and witnessed to be enforceable.

What you can and cannot agree

The scope is wide, but it has statutory limits that surprise people.

• Property. You can contract out of equalization entirely, define separate property, and set out what happens to specific assets.
• Spousal support. You can fix it, limit it, or waive it, subject to section 33(4).
• Estate rights. You can release claims against each other’s estates.
• The matrimonial home. You cannot contract out of the possessory rights in Part II, section 52(2) says so expressly. This is the most common drafting error in home-made agreements.
• Children. You cannot bind a court on decision-making, parenting time, or child support. Those are determined on the child’s best interests and the Guidelines at the time, whatever the contract says.

Who actually needs one

These are the situations where the absence of an agreement tends to cause real damage.

• A business owner, where a spouse’s equalization claim could force a sale or a damaging payout
• A second marriage where each spouse has children from a prior relationship to protect
• One party bringing significantly more property into the relationship
• An expected inheritance or a family gift, particularly where it may go into the home
• A spouse taking on significant debt from a prior life
• Partners who do not intend to marry, and who therefore have no default property regime at all
• Significantly different income trajectories, where a support claim could be large

Making it hold up

An agreement is only worth what it is worth on the day it is challenged. The same section 56(4) grounds apply as for separation agreements, and the same three precautions do most of the work.

• Full financial disclosure, exchanged in writing and attached to the agreement. Non-disclosure of a significant asset or debt is the leading cause of a contract being set aside.
• Independent legal advice for both parties, with certificates. Not the same lawyer, and not a rushed meeting the day before the wedding.
• Time. An agreement signed under time pressure invites a duress argument. Start months before the wedding, not days.

It is also worth revisiting the agreement after major life changes, a child, a business sale, a move, a long period out of the workforce. An agreement that was reasonable in year one and grotesque in year fifteen is more vulnerable than one that has been kept current.