1) What is a domestic contract?

Under most Canadian provincial/territorial legislation (check your province) a domestic contract is a contract between two parties that will determine how their affairs will be settled in the event of:

  • The breakdown of a marriage (marriage contract or Prenuptial Agreement)
  • The breakdown of a non-marriage relationship (cohabitation agreement)
  • Separation of the couple (separation agreement)

What these three agreements have in common is that they must be in writing, signed by the parties and witnessed.

2) Should legal advice be sought when considering a domestic contract or Prenuptial Agreement?

Definitely. Although we can make some general statements about Prenuptial Agreements, the legal issues can be complex and federal and provincial/territorial laws need to be consulted and understood. Both parties should be seeking independent legal advice. In fact, the legislation of some provinces requires it. 

3) What is a marriage contract?

A marriage contract is a contract between two parties made either while married or in contemplation of marriage (a Prenuptial Agreement or ‘Prenup’) that details how their respective affairs will be settled in the event of:

  • Divorce
  • Separation
  • Annulment
  • Death

The issues dealt with in a marriage contract can be:

  • Division of property
  • Support obligations
  • Any other issues

Depending on the province/territory, marriage contracts may be prevented from:

  • Dealing with child support/custody arrangements
  • Limiting access of either party to the matrimonial home in contradiction to law

4) What is a cohabitation agreement?A cohabitation agreement is a contract entered into by two parties who are either living together or contemplating living together. It may deal with issues such as spousal support and the distribution of assets should the relationship end and perhaps child support. However, some provinces explicitly prohibit the issue of child custody in a cohabitation agreement. As with marriage contracts, the agreement must comply with federal/provincial law, particularly in the case of child support, and the courts reserve the right to amend or cancel the agreement if it is determined that it goes against legislation. 

5) Will a domestic contract be legally enforceable?

Perhaps. Family law issues can be very complex and as a provincial/territorial concern, there will be variations across the country. As mentioned above, this is why competent legal counsel should be sought when considering a domestic contract. The courts reserve the right to overturn or amend domestic contracts if the terms appear to be ‘unconscionable’ for one of the parties or particularly if any dependent children are not being taken care of adequately.

These arrangements are especially important for second marriages.  Don’t delay.  Make arrangements early in the relationship.  It is best to be clear and agree for all parties concerned.