Domestic agreements: A primer

What are domestic agreements?

A domestic agreement is a contract between two individuals that sets out what will occur to their property and spousal support obligations when their relationship ends or when one of them passes away. The agreement can also outline how property is used, and who has access to the property during the course of the relationship. 

The terminology to describe these agreements differs from province to province. Here are a few examples:

• Prenuptial agreement
• Cohabitation agreement
• Marriage contract/agreement
• Marital property agreement

Why have a domestic agreement:

• Anyone who plans to start co-habiting should consider entering into a domestic agreement even if you do not have substantial assets.
• Domestic agreements allow a couple to create their own plan of property division and financial support when there is a spirit of co-operation between them. 
• Having a domestic agreement in advance, takes away the uncertainty of how a judge, who knows little about the individuals, will determine how property is divided, and what support is given and to whom. 
• Having a domestic agreement will help property issues that a will does not address. Having a binding domestic contract will generally prevent the planned division of assets and spousal support from being ignored

What kind of advice do you need? 

Since domestic agreements are a legal contract, each party to a domestic agreement, and perhaps other interested individuals (such as family members), need competent legal advice. Without proper legal advice for both parties, there is an increased chance that the agreement will be disregarded by the court or deemed unenforceable. 

Interested in reading the full article?

Contact us for our Tax and Estate Planning education article: Domestic agreements: a primer. We also have articles that take a deeper dive into the 2018 Federal Budget, Selling a Business and Capital Gains Exemptions.

Talking about domestic agreements with your children? 

This is a sensitive topic and a family member should start talking to their teenage children and young adults about the benefits of domestic agreements early, especially where there is significant family wealth or a family business that may come to them. 

Tell them:

• That having a domestic agreement in place is important, out of respect for all family members. 
• It will help the entire family feel secure about the wealth and be reassured that it is not at risk of being disrupted. 
• It may benefit the contracting parties because they can provide predictability, less stress and conflict, if either party in the agreement feels they need to transition out of the relationship.

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