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Domestic Contracts: Making Break-Ups A Little Easier (Part 1 of 3)

When a marriage-like relationship breaks down, discussions on separation issues don’t need to descend into contentious exchanges of “I want this” and “You can’t have that”. Drafting a domestic contract can often minimize such conflict. This post is the first in a three-part series to highlight what every couple should know when creating a domestic contract.

What Is A Domestic Contract?

These legal instruments set out in advance a couple’s decisions regarding legal, financial and practical matters. When the relationship ends, it’s much more likely both parties will accept the terms of a separation that they themselves helped to create.

In Ontario, guidelines for these contracts are outlined in the Family Law Act and provide for both married and unmarried couples. Contracts typically cover areas such as:

  • Property and ownership
  • Spousal support
  • Some childcare issues

We’ll go over these areas in our next posts, Parts 2 and 3 of this series. Meanwhile, the first steps include determining what type of contract to use and how to make it legally binding.

The Right Contract

The three most common types of domestic contracts include:

  • Marriage Contract Also known as prenuptial agreements, these apply to married couples from the time of the marriage all the way to its dissolution (either by separation, annulment or death).
  • Cohabitation Agreement For unmarried couples who are about to or who currently live together in a marriage-like relationship, the agreement lasts until the couple separates, marries (upon which, the agreement is recognized as a marriage contract) or one of them passes away.
  • Separation Agreement Provides for couples who lived together but who have decided to live apart and need to decide on post-relationship issues.

Before Signing On The Dotted Line

In order for a domestic contract to be considered valid and legally enforceable, the signing parties should make sure to check off all the below:

  • The document is made in writing, signed by both parties and witnessed.
  • Parties who are minors need a court’s approval for the contract to be valid (approval can be obtained before or after the contract is signed).
  • Mentally incapable parties need to have their guardian/attorney/trustee act on their behalf.

Once you’ve figured out which contract suits your situation, the next step is figuring out your rights and obligations. We’ll tackle these sometimes complex issues in our next posts.

Married or cohabiting? Call us.

Our lawyers can help.

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