What is a domestic contract? Are there different kinds?

Domestic contracts are legal agreements entered into by people wishing to set their own terms in their relationships with one another and include cohabitation agreements, marriage contracts and separation agreements.

To be legally binding, the contract must be in writing and signed by each person in the presence of a witness.

A cohabitation agreement is an agreement between a couple that either lives together or is about to do so. These agreements most often deal with financial and property issues. They cannot deal with custody and access arrangements for children – these issues can only be determined if the couple separates.  If the couple later marries, the cohabitation agreement can become the marriage contract.

A marriage contract is very similar to a cohabitation agreement, except that it is for couples who are married or who are planning to marry.

A separation agreement, whether between a married or common law couple, deals with the many issues that arise at the end of the relationship, including custody and access, child and spousal support and division of property.

Before signing a domestic contract, it is crucial that each person seek independent legal advice to ensure they understand the terms of the agreement and, in particular, how their rights under the agreement may be different from their rights under the law. People also have the right to full and honest information about the other person’s financial situation, including income, property and debts.

A domestic contract will not be binding if it can be proven that it was signed under duress or is grossly unfair. Women leaving abusive relationships are especially vulnerable to being coerced into signing separation agreements that do not protect their legal rights. Independent legal advice is particularly important in these situations.

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