In the case of divorce or separation, marriage or cohabitation agreements set out legal obligations for each party’s financial interests. Although the Family Law Act has specific rules on dividing family property and debt after a separation, a couple may agree in writing to make their own customized arrangements.
For instance, rather than following the automatic 50/50 split of family property, a couple may agree to an unequal division, such as 70/30.
Aside from financial issues, the agreement may include arrangements for spousal support. It might also specify which party has the right to live in the couple’s habitual residence after separation.
An agreement may discuss issues related to children that one spouse brings into the relationship. Although it may also include provisions for the care of children born during the relationship, such clauses will not be binding if the couple separates.
The law imposes certain obligations on married and unmarried spouses that one cannot contract out of. For example, a contract about having sex, remaining childless, or to end the marriage after a certain time will never be enforced by a court.
If both spouses get legal advice from their own lawyers and the agreement is reasonable, it will most likely be enforced by a court if one spouse tries to ignore, change, or break the agreement after it is signed. But contracts that are significantly unfair to either person, were unfairly entered into, or were made without full financial disclosure may be overturned by a court, especially if one or both parties did not get independent legal advice about the meaning of the agreement and the consequences of signing it.
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This article is for general information only and is not legal advice.