LEGAL HELP: MARRIAGE CONTRACTS AND COHABITATION AGREEMENTS
ARE "PRENUPS" ENFORCEABLE? (Or... Are they more trouble than they're worth?)
The "Legal Help" series is brought to you by:
The Professional Corporation of the Law Office of Robert A. Dinnen
4 Government Road East, Kirkland Lake, Ontario P2N 1A2
Telephone (705) 567-7979 - Fax (705) 567-7980
41 Third Street, P.O. Box 907, Englehart, Ontario P0J 1H0
Telephone (705) 544-8878 - Fax (705) 544-8444
Email [email protected]
WHY SHOULD WE HAVE A MARRIAGE CONTRACT OR COHABITATION AGREEMENT?
What Exactly Is A "Prenup" Anyway?
- The word "prenup" is just another word for a marriage contract or cohabitation agreement. It is short-hand for "prenuptial agreement." You don't have to be getting married to have a prenup, though.
- The law of Ontario recognizes and upholds the terms of a proper agreement made by people who are married, or about to be married, or people who are living together, or are about to be living together, in a conjugal relationship, whether heterosexual or homosexual.
- An agreement may include terms as to how property will be owned, both during marriage or cohabitation and afterwards, and also may include terms relating to the financial support of the partners after a separation.
- Although terms dealing with the custody of, access to and support of children are not binding on a court, such terms might be important evidence of the parties' intentions at the date of signing, in particular with respect to children of one party only.
Why Do We Need One?
- A marriage or cohabitation agreement allows the parties the flexibility they should have to make their own futures.
- Such an agreement is a fundamental part of mutual financial planning. You owe it to yourselves and to each other.
- Agreements may be amended as time goes on, circumstances change, and co-operative spouses discuss the progress of their lives together.
No, It Isn't Romantic
- However, entering into a cohabitation or marriage agreement doesn't jinx a relationship any more than making a will hastens death. It's just good planning, that's all. In fact, making an agreement encourages good faith and trust between consenting individuals.
- Do you really want your lives to be decided by the same "default" laws that apply to every other couple in Ontario that didn't have the foresight to get a prenup, or would you rather make your own arrangements?
- In the absence of a prenup, the legal results of a separation might not be appropriate to a particular case, and may even be surprising.
- The resolution of issues arising out of a relationship breakdown in the absence of a prenup may be terribly complicated and expensive to work out, particularly given that, ordinarily, the parties are anything but friendly with one another at the time, and the results of a fight probably won't please either party.
- A properly drawn agreement allows people to settle what they want to (and can) settle in advance, while they are still getting along together, without having to worry about having to argue with each other after becoming bitter and emotional.
- Making an agreement now will help you get through the rough patches in the future.
Things To Consider
- Transferring of property into both names.
- Opening joint bank accounts.
- Separating specific assets.
- Providing for joint or separate acquisitions.
- Extending or limiting employment pension rights.
- Defining rights in the event of death, within the limits of the law governing dependants' rights.
- Describing general or specific entitlements to financial support.
Tips
- Married spouses cannot predetermine who will be entitled to reside in the matrimonial home in the event of a marriage breakdown.
- A support provision may not be enforceable in unconscionable circumstances or in other limited cases, but generally, you should consider whether there is to be a waiver of support, whether you should agree now on a lump sum amount or periodic payments or whether you prefer to leave the issue of support to be resolved if and when it has to be.
- If you decide to predetermine what will happen with respect to support, consider the possibility of formulating guidelines as to how it will be calculated, keeping in mind the relevant variables. This is where a good lawyer can be particularly helpful.
- Talk to each other about this stuff. Then talk to a good lawyer.
It just makes sense.
The "Legal Help" series is brought to you by:
The Professional Corporation of the Law Office of Robert A. Dinnen
4 Government Road East, Kirkland Lake, Ontario P2N 1A2
Telephone (705) 567-7979 - Fax (705) 567-7980
41 Third Street, P.O. Box 907, Englehart, Ontario P0J 1H0
Telephone (705) 544-8878 - Fax (705) 544-8444
Email [email protected]