Individuals who are married or co-habiting, or intending to do same, may enter into an agreement which resolves their respective rights and obligation under the marriage or cohabitation upon annulment, separation, divorce or death. These rights and obligations may include:
- property rights
- support rights
- right to educational and moral training of children
This kind of agreement generally allows the parties, with certain exceptions, to opt out of the relevant provincial law that govern property division and support obligations, and to agree on how certain other aspects of their relationship will be managed. [Halsbury’s Laws of Canada – Family]
The term “domestic contract” may include:
- marriage contract
- separation agreement
- cohabitation agreement
- paternity agreement
- family arbitration agreement
Although parties can enter into an agreement prior marriage that deals with most of their rights and obligations, it should be noted that a marriage contract cannot deal with custody or access to children. Also, a marriage contract cannot limit a spouse’s right under Part II of the Family Law Act with respect of the matrimonial home.
A cohabitation agreement is for two persons who are cohabiting or who intend to cohabit, but are not married. Like other kind of domestic contract, in a cohabitation agreement parties can agree on and provide their respective rights and obligations during cohabitations, or upon the cessation of cohabitation or death. Parties may not deal with custody or access to their children in a cohabitation agreement.
If parties to a cohabitation agreement marry each other, the agreement is deemed to be marriage contract.
Parties who are not married to each other may enter into an agreement that deal with the pre-natal and birth expenses of a child, support of a child, or burial expenses of a child or its mother. This agreement is called a paternity agreement.