Barrister & Solicitor


Marriage or Cohabitation
Marriage Breakdown or Breakdown of a Common Law Spousal or Same-Sex Partner Relationship
Probate Taxes
Rights of Surviving Spouse & Dependants

Family Law: Marriage or Cohabitation

Marriage Contracts and Cohabitation Agreements:

Whether prior to marriage or cohabitation, or during that relationship, one or both spouses may want to complete an agreement confirming the legal implications of the relationship. In such an agreement, spouses are permitted by the Family Law Act to vary the entitlements and obligations existing at law related to property and support. It is not possible in such an agreement to limit entitlements provided for by law to the matrimonial home, as addressed at paragraph 6 (click here). Nor is it possible to determine rights of custody or access to children.

To complete this kind of agreement, spouses usually have an understanding between themselves prior to seeing lawyers. Often, one spouse will retain a lawyer to reduce the agreement to writing. The spouses then review the agreement to ensure that it is satisfactory. The other spouse then sees a lawyer to obtain independent legal advice related to the nature and implications of the agreement. Financial disclosure must be exchanged, in order that the spouses are in a position to knowledgeably negotiate with each other. For negotiations to properly take place, there must be a meaningful period of time, so that pressure is not created by looming deadlines. For example, marriage contracts should not be negotiated and completed in a flurry of wedding preparations.

Often, these types of agreements will be “single purpose”, excluding, for example, a family business or a trust fund from a spouse’s net family property, as addressed at paragraph 5(d) (click here). The agreement may be motivated by tax, corporate or estate planning considerations. Second marriages often suggest a need for a marriage contract, particularly where there are children of the first marriage and substantial property in issue. It is critical that these motivations are identified and addressed. In some cases, spouses will fully address a resolution of issues related to their relationship and its potential breakdown. The appropriate terms will vary from one relationship to another, by reference to considerations including the parties’ respective ages and stages in life and the value of their respective properties.