Should I Have a Marriage Agreement?

Family Law agreements, namely, marriage, cohabitation and separation agreements are legal binding contacts used to settle issues that may arise upon breakdown of a relationship. Such agreements can deal with a multitude of legal issues such as division of property and debt, spousal support, child support and parenting arrangements.

Why You Should Have a Family Law Agreement

The court process can be very expensive, and it may take many months before you reach a resolution. Negotiating a Family Law Agreement is a much cheaper alternative and a solution can be found within a short period of time.

Moreover, individuals have more flexibility in crafting solutions that are unique to their circumstances and needs.

If children are involved, it is important that the separating individuals maintain a cordial relationship in order to better facilitate the parenting arrangements. A separation agreement will help the parties avoid litigation which in turn will help maintain a more decent relationship post separation.

What is a Marriage Agreement?

A marriage agreement is an agreement entered into by married spouses who have been legally married either by a civil ceremony performed by a marriage commissioner or in a religious ceremony performed by a religious official.

The marriage agreement may be entered into prior to marriage or shortly after marriage. Such agreements may deal with not only what happens when a relationship breaks down but also how the relationship will be managed.

What is a Co-habitation Agreement?

Cohabitation agreements are entered into by unmarried spouses. You may enter into a cohabitation agreement before you begin living in a marriage-like relationship or shortly after.

Under the Family Law Act, an unmarried couple is a spouse if:

1. they have lived together in a marriage-like relationship for two years or
2. they have lived together in a marriage like relationship for less than two years and have a child

Unmarried spouses who have lived together for 2 or more years have seek orders for property and debt, support, and parenting arrangements. They share the same rights as the married spouses under the Family Law Act.

Unmarried spouses who have lived together for a shorter period of time and have children may seek orders for spousal support and parenting arrangements.

What is a Separation Agreement?

Separation agreements are agreements entered into after the relationship has broken down. These agreements can cover any family law issue such as:

1. How the children will be cared for?
2. Who will make important parenting decisions about the children
3. Who will have custody of the children and how much access time should be permitted with the other parent
4. how much child support should be paid, and which special and extraordinary expenses will be shared
5. whether spousal support should be paid, how much and for how long
6. how will the family law property and debt be divided?

Who Should Enter Into a Marriage or Cohabitation Agreement?

Marriage and cohabitation agreements are entered into when:

1. you expect the relationship to be long
2. one or both spouses have substantial amount of property or debt
3. one spouse has significantly more income than the other
4. one or both spouses expect to acquire property or inheritance during the relationship
5. one or both spouses are bringing child(ren) into the relationship

Additionally, with respect to cohabitation agreements, they may be appropriate if:

1. the parties expect to have a child within the first two years of living together
2. the parties expect that spousal support may be an issue

What Can Be Included In The Marriage or Cohabitation Agreements

Marriage and cohabitation agreements may cover issues such as property, and debt, child support, waiver or payment of spousal support.

It is important to note that parenting arrangements and contact provisions are only enforceable if they are made after separation or when the parties are about to separate. For these reasons, custody and access should not be negotiated in marriage and cohabitation agreements.

No Obligation to Sign a Family Law Agreement

You are not under any legal obligation to sign and enter into a family law agreement just because one of the parties wishes to do so. With or without the family law agreement, disputes can still be resolved, and remedies are available under the common law, the Divorce Act and the Family Law Act.

When an Agreement May Not Be Enforceable

In order for a family law agreement to be enforceable, it must meet the following:

1. Each party must provide full financial disclosure
2. Each party must understand their legal rights and obligations under the agreement
3. Each party should be able to express their views, and contribute to negotiating the agreement and,
4. There is no obligation on any party to reach an agreement.

Each party to the agreement must be able to understand the agreement, be capable of agreeing to it and agree to it voluntarily. Under section 93(3) of the Family Law Act, the court may set aside all or part of the agreement dealing with division of property and debt if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

b) a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;

c) a spouse did not understand the nature or consequences of the agreement;

d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

The Legal Formalities of a Family Law Agreement

1. Parties to the agreement must provide full financial disclosure to each other
2. Agreement must be in writing as it is easier to establish the terms of the agreement
3. Parties cannot be under any sort of legal disability such as insanity
4. Parties must both sign the agreement of their own free will, without unfair pressure by the other party
5. The agreement must be properly executed, that is, each party signs in the presence of at least one witness who is not a party to the agreement

Why You Should Get Legal Advice Prior to Entering into Any Family Law Agreement

One way to ensure you are not being taken advantage of and are fully aware of your rights under the Family Law Act, you should seek independent legal advice prior to signing the family law agreement. By seeking independent legal advice, you will know:

1. what the agreements means
2. what are the rights and obligations of each party
3. how the agreement does or does not limit other legal remedies that may be available
4. how the agreement may affect each person over the short and long term
5. options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement.

Additionally, it is important for both parties to seek independent legal advice as it will ensure that no one signed the agreement under influence or duress, thus making the agreement stronger and the court is more likely to enforce the agreement.