Signing an Agreement

Marriage Contracts and Agreements

Preparing your own family contracts is not advisable. Without a clear knowledge of your rights and the laws surrounding contracts, you may find your agreement is not worth the paper it is signed on. It may be entirely legally invalid, or may contain vital parts that are not enforceable.

For example, many people are unaware that a prenuptial contract in which the spouses give up all rights to spousal support may be enforceable, but any clause giving up rights to child support for the children of the relationship will not be.

 

PREPARING FOR THE FUTURE

At MacDonald & Partners LLP, much of our work involves helping clients negotiate and draft contracts and agreements that are fair, enforceable and accomplish their objectives. Doing so requires a thorough knowledge of our clients' family situation, needs, interests, financial background and legal rights.

We also take the time to thoroughly explain the risks and consequences of every part of an agreement before our clients sign anything.

Our lawyers can help you with many types of contracts, including:

  • Marriage contracts and agreements: These set out how a couple will deal with issues that may come up during a separation or divorce, such as property division and spousal support. They may also set out how the couple will deal with issues within the marriage. These contracts are often entered into by people going into a second marriage, or people who have considerable assets. They include prenuptial contracts, signed before the marriage, and post-marital contracts, signed after the marriage.
  • Separation agreements: Drawn up as part of the divorce and separation process, these contracts are used to settle issues such as child custody and access, child support, spousal support, division of property, and any other topics of importance to the separating couple.
  • Other family law contracts: These include gestational contracts, visitation for grandparents, and any other contracts that deal with family matters.
  • Cohabitation agreements: These deal with many of the same issues as marriage contracts for couples who do not plan to marry.

Proper disclosure of all issues, especially financial information, is key, if there are significant financial assets involved. We will make sure you understand how much you are required to disclose, and help you ensure that your partner's disclosure is complete.

 

CONTACT MACDONALD & PARTNERS LLP

Call us at 416-971-4802 or send us an email to set up an appointment in our downtown Toronto or North York office.

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Frequently Asked Questions:

You don’t need the court except to process a divorce after all other issues arising out of the marriage and separation are settled by agreement. The usual practice is to see the progress to divorce as a two-stage matter with the divorce in the second stage. The first stage is the negotiation of a separation agreement that takes care of all the other issues.
Yes. Your status as a separated spouse does not depend on whether or not you signed a separation agreement. You and your spouse are separated when you are living apart from each other, and one or both of you have made a permanent decision not to resume your life together. There is nothing in our law that requires you and your spouse to live together; therefore, there is nothing in the law that requires you to obtain permission from any authority or person to separate.
If you settle all matters arising out of the marriage and separation without going to court, the settlement should be recorded in a separation agreement even though a divorce is contemplated. The agreement must be in the form of a separation agreement to comply with the definition of a “domestic contract,” which has special properties in family law, and to meet the requirements for certain tax advantages that are available. Notwithstanding that it is a separation agreement, when properly drawn it is made to govern the rights and obligations of the parties with respect to each other on separation, divorce and death.
After the separation agreement is signed, the application for divorce is usually made by one or other of the parties although there is provision for the application to be made jointly by both of them. (A joint application is more complicated and of little practical benefit.) The most frequently used ground is marriage breakdown by reason of a separation of at least one year. In this case, the application can be made by either spouse. Sometimes, much less frequently, marriage breakdown by reason of adultery is the ground relied upon. Here, the application is made by the other spouse. (A third possibility, almost never used, is marriage breakdown by reason of cruelty.) The application is a simple form, and where there is a separation agreement the order requested is for a divorce only. The application is filed in the court, and a copy is delivered to the other spouse. Since all issues associated with divorce have been settled in the separation agreement and since there is no dispute about the ground for divorce, the other spouse has no reason to file an answer and lets the time for doing so go by. At this point, the spouse who made the application files the required affidavit and other documents in the court registry asking for an order for divorce. An official at the court checks the documents and if they are complete takes them to a judge who, in due course, dates and signs the divorce order without the need for the parties or their lawyers being present. The court official mails the divorce order to the parties. The divorce takes effect thirty-one days after the date of the divorce order. When this time has expired, an application can be made for a certificate of divorce that is needed for purposes of remarriage.

Find more frequently asked questions and answers here: