Cohabitation and marriage agreements are used in family law to protect the rights of a couple by outlining the obligations of each spouse. These legal documents present terms regarding the responsibilities of each partner during the relationship and how assets and debts should be treated if the relationship dissolves. Planning for unforeseen eventualities in your relationship can safeguard your assets and personal interests and even help avoid conflict.

What are cohabitation and marriage agreements?

A cohabitation agreement, also called a non-marital contract, is a legal contract between two people living together or planning to live together in a marriage-like relationship. This contract is ideal for unmarried couples in long-term relationships or those with children.

A marriage agreement is a legal contract between a couple planning to get married or already married. This legal contract outlines the rights and obligations of each spouse and can also include custody arrangements for children. There are three types of marriage agreements:

  • A prenuptial or premarital agreement that is entered into before marriage
  • A separation agreement that is entered into when contemplating or after divorce or separation
  • A hybrid agreement that is a combination of premarital and separation contracts

Cohabitation and marriage agreements cannot be verbal. They must be established in writing and signed by both parties and a witness.

Couples are considered spouses if they are married or in a relationship and living together for at least two years. If the couple has children and lives together, they are considered spouses in less time, except in matters relating to property and debt.

Why get a cohabitation or marriage agreement?

In family law, cohabitation and marriage agreements outline how property and debt are managed during the relationship and if the couple separates. Some topics that can be addressed in the contract are:

  • The rights each person has to property and assets brought into the relationship and how they should be handled during and after the relationship
  • The rights to property and assets acquired by gift or inheritance
  • If expenses should be proportional to each spouse’s income, split equally or paid from a joint account
  • If one party acquires debt before or during the marriage, can it be settled using family property (income earned during the relationship or marriage)?
  • Who stays in the marital or family home if the relationship ends?
  • How commingled property, assets and debts should be split in the event of separation or death
  • If – and how much – spousal support is given, and for what period

Marriage and cohabitation agreements cannot be used to avoid parental support for children. Any provisions within the contract that may adversely affect a child’s right to financial support will not be enforced in court.

Will a cohabitation or marriage agreement be upheld in court?

The validity and enforceability of these agreements are predicated on fairness. A court can opt to set aside a cohabitation or marriage agreement if:

  • it was signed under duress
  • it is found to be fraudulent
  • a party has failed to disclose a significant portion of their debt or assets
  • the court deems the terms unconscionable

To ensure that the cohabitation or marriage agreement is drafted fairly, each party should seek independent advice from lawyers versed in family law. Each spouse should have their lawyer review the agreement and explain the outlined rights and obligations. They should also understand how and if the contract might affect future legal options.

Cohabitation and marriage contracts can be changed with a second agreement, called an addendum. An addendum can change clauses in the initial agreement or replace or cancel the first agreement. Any addendum must be agreed upon and signed by both parties and a witness.

Family lawyers in Surrey

A cohabitation or marriage agreement may seem like an unromantic gesture in your relationship. However, it’s a pragmatic decision that encourages you and your partner to communicate openly about your expectations. At Nirwan Law Corporation, our lawyers specialize in family law and can expertly guide you through preparing and reviewing your cohabitation or marriage agreement.

Contact us today for your free consultation.