Pre-Marriage, Domestic and Separation Contracts

men signing a Prenuptial Agreement Toronto

General Contract Rules

The basic standards that apply to all contracts are that there must be an offer, consideration, and acceptance and that the contract is signed, sealed, and delivered. Valid contracts can be both oral and written; however, it is best practice to ensure that any contract you intend to be binding is written and signed by both parties, preferably with more than one witness present. We recommend that for all contracts, especially those involving family law, that each party seeks out Independent Legal Advice (ILA) prior to signing. We recommend ILA because when received, any claims made after the contract was signed in an attempt to excuse violations of the contract would be incredibly difficult to prove in a court of law as legitimate. Excuses such as that the contract was signed out of undue influence, duress, or other kinds of pressure will not be powerful legal arguments as both parties were informed of the repercussions of the contract by a legal professional prior to signing it. If you are unsure, consult experienced Toronto family lawyers to ensure your rights are protected.

Premarital and Domestic Contracts

Premarital Contracts, also commonly referred to as Prenuptial Agreements or “prenups” in the United States, are contracts that lay out all assets and liabilities both parties are entering into the marriage with, how said assets and liabilities are to be dealt with at the dissolution of the marriage, ownership arrangements of any assets, property, etc., throughout or after the marriage, and potential Support arrangements if the marriage dissolves. We highly recommend that any couple entering the marriage with substantial assets that may have complex ownership arrangements enter a premarital contract. This ensures a record of values at the marriage date and any agreed-upon ownership arrangements. Toronto Rashidy & Associates’ family lawyers can help draft contracts that protect the parties from potentially having to equalize said assets after divorce under the applicable statutory regime.

These contracts do not necessarily have to be entered into prior to the marriage. If the parties enter the contract during the marriage, it would be considered a Domestic Contract and would have just as equal binding power as a contract entered prior to the marriage; so long as it was entered into equitably and both parties received ILA or explicitly waived ILA in the contract.

We note, however, that couples cannot contract out of Child Support and the Equalization of the matrimonial home in either a domestic or premarital contract. Any other factors related to divorce, such as Spousal Support or Equalization of Net Family Property, can be contracted. Consulting with experienced family lawyers in Toronto will ensure these contracts are legally sound and enforceable.

Separation Agreements

During the dissolution of the marriage, the parties may enter a Separation Agreement to make the entire separation process more efficient. These agreements, if entered without undue influence and with ILA, can adopt, edit, or override previously agreed-upon Domestic Contracts or clauses. The Separation Agreement, like other domestic contracts, can be submitted to the court, and the clauses can be made into temporary or permanent court orders.

These agreements can lay out timetables for parenting arrangements with the children of the marriage, Child Support amounts, Spousal Support amounts, plans for Equalization, and more. So long as the agreement is entered into conscionably, with both parties receiving ILA or explicitly waiving ILA, it becomes binding. Rashidy & Associates’ family lawyers in Toronto are invaluable when negotiating fair and enforceable Separation Agreements.

If the couple does not have any kind of Premarital or Domestic Contract in place, nor a Separation Agreement, the default regime that would take place during the dissolution of the marriage is that stipulated by the Divorce Act, and if in Ontario, the Family Law Act.

If you have any questions regarding Premarital, Domestic, and/or Separation contracts, book a consultation with one of Rashidy & Associates’ Toronto family lawyers today here.