Prenuptial, Cohabitation, Separation and Marriage Agreements
Persons who plan to marry each other but want to settle property matters before marriage, sign what is referred to as a family law agreement, also known as a pre-nuptial agreement.
Unmarried persons who settle their property matters or plan to live together, negotiate and sign a Property Agreement or cohabitation agreement.
Section 120.1 of the Family Relations Act defines a property agreement as:
120.1 (1) If spouses who are not married to each other make an agreement, Parts 5 and 6 apply to
(a) the agreement, and
(b) if covered by the agreement,
(i) an annuity,
(ii) a pension or an interest in a pension plan,
(iii) a home ownership savings plan, or
(iv) property not described in subparagraphs (i) to (iii).
(2) In this section:
“agreement” means an agreement that would be
(a) a marriage agreement for the purposes of Part 5 if the spouses were married to each other, or
(b) a separation agreement if the spouses were married to each other or separated after marriage;
“property” means property of a spouse that would be a family asset under Part 5 if the spouses were married to each other.
(3) In applying Part 5 or 6 for the purpose of this section, a reference to “marriage” in Part 5 or 6 must be deemed to be a reference to a marriage-like relationship between the spouses who are not married to each other.
After a couple separates, it is open to them to negotiate a Separation agreement. There is no statutory definition of “separation agreement” under the Family Relations Act. A Separation Agreement is made between parties on the breakdown of a marriage or common law relationship in attempt resolve the issues of property division, custody, guardianship, access, child maintenance and spousal support. A separation agreement may be a marriage agreement.
A Marriage Agreement is made before or during a marriage and may deal with property matters, custody, child support and spousal support as well.
“Marriage agreement” is defined under s. 61 of the Family Relations Act as:
61 (1) This section defines marriage agreement for the purposes of this Part and this definition applies to marriages entered into, marriage agreements made and to property of a spouse acquired before or after March 31, 1979.
(2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for
(a) management of family assets or other property during marriage, or
(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.
(3) A marriage agreement, or an amendment or rescission of a marriage agreement, must be in writing, signed by both spouses, and witnessed by one or more other persons.
All of these agreements are contracts and they are all subject to review by a court upon application by a party to such an agreement. A court may uphold these agreements or vary these agreements. At the end of the day, a court will determine if such an agreement mentioned above is fair.
As part of any separation agreement, there should be a term that states that the terms of the separation agreement will be made into a consent order and such an order will be filed with the court.