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Prenuptial & Cohabitation
Prenuptial Agreements
No one wants to think about the possibility of separation and divorce when they marry, but statistics show that thirty-eight percent of all Canadians who marry will separate or divorce. So, one does well to prepare and plan for what will happen to their hard-earned assets if their relationship fails… just in case.
The law sets out what will happen to your property if you separate without an agreement in place. But you and your loved one can stay in the drivers’ seat by taking courage and creating an agreement or marriage contract between yourselves about the details of your separation, if that must ever happen. You can make valid binding agreements with different terms and conditions from those provided for by the Family Law Act and the Divorce Act. However, you cannot make enforceable arrangements about custody, access or child support in prenuptial agreements in Canada. The law concerning children is based on the belief that the circumstances concerning the best interest of the children may always be changing, so issues concerning them may only be decided at the time of separation.
You may however agree on:
- What property you are both bringing into the marriage and how much of its value you wish to keep separate throughout the marriage;
- How your personal and family property will be dealt with if separation occurs;
- Whether and what amount of spousal support will be payable upon separation;
- Allocating economic responsibility for running the household during the marriage; and
- Agreeing on what happens to property if you should die.
Cohabitation agreement
Nearly half of all Canadian couples live common-law which means that they do everything that married couples normally do, except that it is outside of the contract of legal marriage. However it is important to know that, unlike legally married couples, common-law couples are not entitled to Equalisation of Net Family Property or to possession of the family home upon separation. In addition, it is challenging to prove who created which assets or liabilities and therefore proving ownership of that asset or responsibility for a debt at separation is challenging and time-consuming without documentation.
Cohabitation Agreements in Canada are meant to set out who retains ownership of what, if and when the relationship ends; who will move out of the family home; if and how much support will be paid and by whom, and how property will be divided. You can determine how debts created in the relationship will be settled as well, differentiating between family debt and personal debts.
These agreements are legally enforceable, so whether you are seeking to have one done, already have one and need some legal advice on changes to it, or are considering marriage and want to change the Cohabitation Agreement to a Prenuptial Agreement you and your partner should each seek Independent Legal Advice.
At Sterling Law, we listen to your concerns, gain an understanding of the type of security you want or need and create a legal structure to create it … all with an understanding of what is truly enforceable and what is not. We never plan for a break-up but if it must happen, ensure that your strategy is to be prepared for a smooth transition and not to be left at the mercy of the circumstances that may exist at the end of your relationship.
FAQ
Even though a prenuptial agreement isn’t compulsory, every couple that plans to get married soon should have a prenuptial agreement. It is not only for protecting your finances and wealth that you bring into the marriage but also division of property and wealth in case of death of either of the spouses.
No, your partner and you deserve personal legal advice and must not go to the same prenuptial lawyer in Brampton and Mississauga. Each partner will receive independent advice about their rights and responsibilities, which is crucial as you enter into a marriage.
No, prenuptial agreements do not fail. They are not easy to break either. The Ontario Court Of Justice will uphold the agreement, even if it is unfair to another party. This is why it’s important to get separate counsel in Brampton, especially since the weaker partner should be made aware of the terms of agreement.
No, it doesn’t mean they don’t trust you. There could be several reasons they want you to sign a cohabitation agreement in Ontario. Some of the reasons include protecting inheritance of children from previous marriage, protecting a family business, or acknowledging fair distribution of assets in case of death or divorce.
“Parenting time” has replaced the word “access”; think visiting with the child as distinct from making decisions concerning the child. “Parenting time” refers to a child’s right to visit with or be visited by their parents. Recall that the test is “in the best interests of the child.” Parents often confuse this concept thinking and saying, to the annoyance of many judges, that it is their right to see their child. This is inaccurate: the right belongs to the child to see, know and bond with their non-residential parent so as to develop a balanced relationship with both parents.
Parenting time also includes the parent’s right to inquire about and receive information about the child’s health, education and welfare from the parent with decision making responsibility or from the children’s third-party caregivers and supporters.
Sterling Law in Brampton and Mississauga ensures that the future of your cohabitation agreement in case of marriage is mentioned in the agreement itself. You can choose to dissolve the agreement, modify it, or review and revise at the time of marriage.
Life changes for multiple reasons and your cohabitation agreement might not suit your life anymore. If you choose to revisit the agreement in Ontario, Sterling Law in Brampton can help you create a Supplemental Agreement. As a family law firm in Brampton we can also help you create an “Amending Agreement” or an “Addendum Agreement”, which can either change a few terms of the current agreement, completely cancel and replace it.
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Brampton Office: (905) 793-0557 ext 100
Mississauga Office: (905) 306-2793
Email: service@sterlinglaw.ca
