Getting married is an exciting experience, one of the most in fact. However, marriages are also incredibly difficult and they challenge us to learn to be better people. That’s the hope, at least. But all too often, marriages manage to make life extremely tough for those involved.
One option for making things a little easier is to create a prenuptial agreement before getting married. In Ontario, we call these domestic contracts but they’re essentially the same thing. These are agreements that you enter into with your spouse that discuss what should happen to your assets should you separate.
Domestic contracts aren’t just for marriages, however. They are often marriage contracts but they can also be cohabitation agreements. Both of these require a union with a partner. If you think this might be a good idea for you and your partner then you’ll need to know what a domestic contract can cover, what it’s prohibited from covering, and when the courts are allowed to set a domestic contract aside.
What Issues Can a Domestic Contract Cover?
You can make an incredibly wide range of provisions within a domestic contract here in Ontario, especially when compared to what some of the states down south are limited to in their prenups. Though, and this will probably come as a surprise to nobody, you can’t put in a provision that violates the law.
One of the best ways to see the range of issues you can include in a domestic contract is to look are common ones like the following:
- You can set forth the roles and the responsibilities of either you or your spouse throughout the marriage
- You can settle on how property will be owned, as well as how it will be divided should the marriage end in divorce or death
- Put in provisions for the surviving spouse upon the untimely death of the other
- Decide on spousal support obligations, such as the duration for the support
- How inheritances that were received during the marriage will be treated
- Which of the spouses is responsible for the education of the children, as well as their moral training
- How accounts will be divided later on, such as life insurance policies or retirement accounts
One of the perceived downsides of putting together a domestic contract with a loved one is that it can put a damper on the spirits of the whole thing. But while it may be a little dark, compared to the bliss of marriage, it is healthy to sit down with your partner and consider these things.
Much like a will, they’re a good way to feel like all the loose ends are settled in case the worst happens. Speaking of wills, keep in mind that marriage can revoke a will so you will need to be considering these topics again anyway and might as well get them all finished.
What Issues Are Prohibited From Being In a Domestic Contract?
While domestic contracts do offer a lot of freedom about what can be put into them, that freedom is not unlimited. There are certain provisions that the Canadian government has agreed are too important or too unfair to be allowed in a domestic contract.
The things that are too important to be put into a domestic contract are primarily related to children. You are not allowed to predetermine the custody of a child. Neither can you include any provisions about visitation rights or child support obligations. Custodial arrangements of this nature are determined by a court based on the exact circumstances of each partner at that point in time.
In a way that protects people from abusing the domestic contract system, you are not allowed to include any provisions that would grant more than half of a person’s pension to a single spouse. Similarly, you are not allowed to include a chastity clause. This is a clause that prevents the other spouse from receiving any more support should they get involved with another person. This is basically a violation of their right to control their own romantic decisions and that’s just not going to happen.
Finally, of note, both spouses have equal rights to live in and possess the matrimonial home and a domestic contract cannot void this.
When Can the Courts Set Aside a Domestic Contract?
Now, for a domestic contract to work, it needs to be created following some specific rules. If it isn’t, then the courts may be able to set it aside. Some cases where this could happen include:
- If one of the parties failed to grasp the consequences of their actions by signing the contract
- If either of the parties failed to disclose or lied about any assets, debts, or liabilities that they had at the time of the contract
- If one of the parties was pressured into signing the contract against their will
- If the agreement was made in a manner that is not in accordance with the law
- There were unconscionable provisions in the document
What’s the Best Way to Ensure a Domestic Contract is Enforceable?
The best way is also the easiest way. Hire a lawyer. You’re going to need to ensure that your contract doesn’t violate any laws and that all of the provisions in it are enforceable. That means going through some very specific steps, such as the disclosure of assets and debts, as well paying attention to the specific letter of the law.
That can be fairly complicated. So why not hire a professional whose job involved more years hitting the books than they’d care to admit? They can help put together a domestic contract with the best chances of being enforced.
But not only that, you’re about to get married to enter into an agreement with a partner you’re cohabitating with. Domestic contracts are only one small part of all the legalities and complications that can come up in those circumstances. Working with an attorney on your domestic contract can find you a valuable resource in any unforeseen legal issues that might be coming around the corner.