What is a Marriage Contract and do I need one?
A Marriage Contract, often referred to as a prenuptial agreement (in other countries), is a legal contract that sets out the rights and obligations of the parties in the event of separation or death. Typically parties would like to make specific provision for certain assets owned prior to marriage such as a house or family business. The Family Law Act provides for certain “deductions” for assets brought into the marriage but a home that is owned by one party prior to marriage may not be covered. This is where a Marriage Contract may be useful. Often in second or third marriages, a party may wish to ensure that all or some of their assets are left to their children and not the second or third spouse. Again, a Marriage Contract can ensure that your estate is protected.
What can a Marriage Contract deal with and what can it not deal with?
A Marriage Contract can deal with property issues and spousal support. It can also deal with the education and moral training of your children but not custody or access. One should not deal with child support and possession of the matrimonial home in the event of separation as they will be unenforceable.
When should the Marriage Contract be signed?
A Marriage Contract should be negotiated and signed well in advance of your wedding date. If a Marriage Contact is signed too close to the date of your wedding there may be an issue of enforceability in the future in the event there is a separation. It also takes time to engage in meaningful negotiations and to compile and exchange complete financial disclosure. Each party should receive independent legal advice with respect to the Marriage Contract. If there is not enough time to finalize the details of your Marriage Contract, or to complete full financial disclosure prior to the wedding, parties may enter into what is known as a Standstill Agreement which will preserve your rights as if unmarried for a period of time after marriage to enable the parties to complete their Marriage Contract.
Can you make a Marriage Contract after marriage?
Yes. You can sign a Marriage Contract even after you are married. It is, however, preferable to discuss the issue of a Marriage Contract with your spouse well in advance of your wedding as it may cause disharmony in the marriage if it is brought up after your wedding date. Sometimes a party may bring up the issue of a Marriage Contract when receiving an inheritance that may be used to pay off a mortgage on the matrimonial home or used towards the purchase of a matrimonial home.
Common Law Relationships
How long should we be together to count as common law?
If you live with your partner for at least three years, you may have a claim to spousal support. If a child is born of the relationship, there must be a relationship of some permanence for one year in order for your spousal support claim to be considered.
Is common law the same as marriage if we own property?
Yes, if the property is jointly owned. However, if the property is owned by one party it is more complicated. Property rights for married spouses and common-law spouses are different. If your partner owns the house, you may be able to make a claim to ownership or compensation depending on the circumstances. This can be quite complex, so it is recommended that you speak to our experienced family lawyer Annalisa Pressaco to discuss your rights as a common law spouse.
Can we have an agreement if we decide to live together?
Yes, parties who intend to reside together in a common law relationship may enter into a Cohabitation Agreement. A Cohabitation Agreement is similar to a Marriage Contract and in fact becomes a Marriage Contract if you do marry. It may be important to have a Cohabitation Agreement if you own property in order to prevent a future claim against your property if you do separate from your common law spouse.
What is the difference between Divorce and Separation?
The final step in ending your marriage is divorce. Your marriage must be dissolved by an Order of the Superior Court of Justice. Divorce terminates your legal status as a “spouse”. This does not resolve all of the other issues that arise as a result of a separation from your spouse or partner, such as support and property division. A divorce can be granted one year after the date of separation (however, in certain circumstances, the divorce can be granted earlier than one year).
How do I get a legal separation?
When people refer to a “legal separation” they are often asking the following:
- What is recognized as a separation?
- When does a separation take place?
- What is the legal document or process that is proof that a separation has taken place?
The date of separation is important in all family law matters. It affects a number of issues and in particular property, support and when the divorce can be granted. A legal separation occurs when the parties commence living separate and apart and there is no reasonable prospect of them resuming cohabitation. It is important to note that a couple can be separated living under the same roof depending on the particular facts of the case. It is very important to obtain legal advice with respect to the date of separation and how to crystallize the date of separation as it can significantly impact various issues, for example, the value of the property.
When a couple separates there may be many legal issues arising out of the separation. Issues relating to your children (residence, parenting schedule), child support, spousal support and equalization of property and what happens with the matrimonial home. The best way to resolve this issue in a timely and cost-effective manner, is to sign a Separation Agreement. Negotiating terms of such an agreement can be quite complicated, therefore, if you are separated or thinking about separating, talk to the family lawyer. Contact Annalisa Pressaco in order to learn about your rights and obligations.
What is a Separation Agreement?
A Separation Agreement is a domestic contract as defined under s. 54 of the Family Law Act which separating spouses can enter into to document their agreement with respect to parenting of the children, child and spousal support, and equalization or property. The full financial disclosure must be exchanged between the parties. This is necessary so that the spouses can understand the complete financial picture including income, assets, and debts before making decisions about settlement. A lawyer cannot give advice regarding the issue of equalization of property without complete financial disclosure. Legal advice based on financial disclosure ensures that each party understands the terms of the Separation Agreement and the legal consequences of the terms set out in the Separation Agreement.
Who gets custody of the children?
Both parents are entitled to custody of the children. Custody is based solely on the best interests of the children. There are a number of factors when considering the best interests of the children such as the love, affection and emotional ties between the child and each person entitled to claim custody, the child’s views and preferences if they can reasonably be ascertained, the length of time the child has lived in a stable home environment (this list is not exhaustive but provides some examples of what is considered).
What is the difference between Sole Custody and Joint Custody?
Sole Custody: means one parent has the decision-making authority over major issues like health, education, and religion. The child will also reside with the parent with decision-making authority.
Joint Custody: means that major decisions such as health, education, religion are made by both parents in consultation with each other. The children may have primary residence with one parent or reside with each parent 50 percent of the time.
Do I need a travel consent form from my spouse if I have child custody?
Yes. This is a border requirement and not a legal requirement. The party traveling with the child or children needs to have the other parent sign a travel consent form. You can obtain the travel consent form on the Government of Canada website at: http://travel.gc.ca/travelling/children/consent-letter.
How much time will I have with my children if they don’t live with me?
Parents must agree on whether the children will spend their time primarily with one parent, with the other parent having visiting rights or whether the parents will share time more equally. If the parents are unable to agree on how much time the children should spend in each household, the parties may decide to attend mediation (which is explained in more detail under the category entitled “Mediation”), or if they are unable to come to an agreement Court is an option with a Judge imposing a parenting schedule on the parties after considering many factors such as the parents’ availability, ability and willingness to care for the children.
How much child support do I have to pay?
The Child Support Guidelines dictate how much child support is payable. There is a number of factors are used to calculate the monthly child support amount including:
- how much time each child lives with each parent
- the annual gross income of both parents
- the number of children and province of residence.
Special and extraordinary expenses such as medical/dental expenses not covered by insurance, summer camp, daycare and extraordinary extra-curricular activities are in addition to the table amount and each party pays a proportionate share of the expense. Ontario family law states that you may be entitled to a spousal financial support.
In the nutshell, when partnership breaks up, the person with a higher income may have to support the other.
What can I do if my ex-spouse is refusing to pay child support?
Court ordered support or agreements that deal with the issue of support (that are filed with the Court) are collected and enforced through the Family Responsibility Office (FRO). If you are not receiving the child support payments that you are entitled to, contact Concorde Law Professional Corporation today.
Am I entitled to spousal support payments?
Entitlement to spousal support is either determined by a Court or agreed upon or. It may be based on need or on a compensatory basis. The amount of spousal support takes into account the income of both spouses along with other factors.
Duration of spousal support will depend on various factors including:
- the length of the spousal relationship
- the age of the dependent spouse
- the age and level of dependency of the children
- when the spouse will become self-supporting.
Note, that Child support will always be calculated first before Spousal Support is considered. Quantum and duration may be calculated using the Spousal Support Advisory Guidelines. Spousal support payments may be deductible on your Income Tax Return or includable as income if you are the recipient but there are certain requirements specified under the law in order for spousal support to be taxable and deductible. If you are entitled to spousal support, Concorde Law Professional Corporation can help you get what you are owed.
Does my spousal get one half of everything I own?
It is an oversimplification to state that your spouse gets one half of everything you own. The Family Law Act sets out a formula for dividing property between spouses. There are some important points to note in dealing with equalization of property:
- Only legally married couples are eligible to apply for an equalization of property, and not common-law spouses
- In order to calculate the equalization payment, an inventory of the assets and debts, as well as their values must be done. This calculation takes into account what the spouses brought into the marriage, gifts during the marriage from third parties and other excluded assets as well as deductions.
The calculation of the parties’ “net family property” and the determination of whether an equalization payment is owed from one party to the other can be quite complicated. It is important that you seek legal advice on the matter of equalization of property. If you have any questions or concerns about giving a portion of your assets including your business or a pension to your spouse please contact Concorde Law Professional Corporation and set up a consultation with Annalisa Pressaco. – an experienced family lawyer.
What is a matrimonial home?
The matrimonial home is considered to be a property in which spouses reside on date of separation. Regardless of who holds legal title to the matrimonial home, it is regulated by special rules.
Following separation, both spouses have the right to claim the matrimonial home. In order to claim exclusive possession of the matrimonial home, one of the spouses has to provide a written contract or a court order that grants one of the spouses exclusive possession.
This is correct even if one of spouse has a full ownership of the home and the other has no ownership interest at all.
How do I sell the house or buy out my spouse’s interest in the matrimonial home?
If you own your home jointly, you and your spouse must agree to either list and sell the home or transfer it to the spouse who wishes to purchase the other’s share. In case your spouse will not agree to sell you his or her interest in the home, you have to apply to a Court and obtain a Court Order for the sale of the house. If your matter does go to Court, the Court will not normally order one spouse to sell his or her share of the home to the other. In the event you are unable to agree, the Court may order that the home be sold and provide other conditions regarding the sale of the house.
What is family mediation?
Family mediation is a voluntary process, therefore, both spouses must agree to the process to resolve family law dispute. With the help neutral and unbiased mediator both parties try to resolve their issues. The mediation process reduces conflict and allows the parties to come to a mutually beneficial solution to the issues arising from their separation.
When should mediation be considered?
Mediation should be considered when both parties are prepared to enter into negotiations in good faith to resolve the issues arising from their separation. Both parties must be committed to the process. The parties must be prepared to provide complete financial disclosure and be forthcoming with other information at least to the mediator.
There are some situations where mediation may not be appropriate such as relationships where there is a severe power imbalance or situations of domestic violence. Contact Annalisa Pressaco to discuss whether your situation is suitable for mediation.
What are the benefits of mediation?
A successful mediation will ultimately help both parties resolve any contentious issues with minimal conflict at a more reasonable cost than court proceedings. Even in high conflict situations, a skilled mediator can structure the mediation process so that both parties feel that their needs and interests can be addressed by agreement. The solutions that come out of mediation are those of the parties and not imposed by the mediator. Agreements arrived at by two parties are more likely to be honored than a decision imposed by a third party. Further, the process of mediation and the skills developed throughout the process will help the parties in their dealings with one another long after the mediation is over. This is definitely beneficial when the parties must continue a relationship with each other in their role as parents.
Is an agreement reached at mediation legally binding?
No, the mediator will prepare a Memorandum of Understanding or Mediation Report that each party will take to their respective lawyers so that a Separation Agreement can be drafted based on the terms agreed to at mediation. After, on the legal advice of the parties’ respective lawyers, the final Separation Agreement is then signed.