|
|
|
|
|
| Marriage contracts, cohabitation agreements. |
| |
| |
The Family Law Act addresses two types of spouses: property spouses and support spouses.
Property spouses have rights to seek equalization of assets in a marriage, participate in the equal division of the matrimonial home in a divorce action, and prevent the sale or mortgaging of the matrimonial home.
Common law spouses, now including same-sex partners, fall under the support spouse definition for purposes of support obligations.
While not having property rights, a support spouse (as with a property spouse) is bound by support obligations provided he/she has cohabitated continuously for at least three years or has demonstrated a degree of permanence in a relationship if that individual is a natural or adoptive parent of a child.
Support spouses are entitled to support rights as a dependent of a deceased individual.
A same-sex partner will also qualify under spousal provisions of the Land Transfer Tax rebate program.
Whether prior to marriage or cohabitation, or during that relationship, one or both spouses may want to complete an agreement confirming the legal implications of the relationship.
In such an agreement, spouses are permitted by the Family Law Act to vary the entitlements and obligations existing at law related to property and support. It is not possible in such an agreement to limit entitlements provided for by law to the matrimonial home. Nor is it possible to determine rights of custody or access to children.
To complete this agreement, spouses usually have an understanding between themselves prior to seeing lawyers. Often, one spouse will retain a lawyer to reduce the agreement to writing. The spouses then review the agreement to ensure that it is satisfactory. The other spouse then sees a lawyer to obtain independent legal advice related to the nature and implications of the agreement. Financial disclosure must be exchanged, in order that the spouses are in a position to knowledgeably negotiate with each other. For negotiations to properly take place, there must be a meaningful period of time, so that pressure is not created by looming deadlines. For example, marriage contracts should not be negotiated and completed in a flurry of wedding preparations.
Often, these types of agreements will be "single purpose", excluding, for example, a family business or a trust fund from a spouse’s net family property. The agreement may be motivated by tax, corporate or estate planning considerations.
Second marriages often suggest a need for a marriage contract, particularly where there are children of the first marriage and substantial property in issue. It is critical that these motivations are identified and addressed.
In some cases, spouses will fully address a resolution of issues related to their relationship and its potential breakdown. The appropriate terms will vary from one relationship to another, by reference to considerations including the parties’ respective ages and stages in life and the value of their respective properties.
Consult your lawyer
| |
|
|
|
