Is a marriage contract or cohabitation agreement enforceable in Ontario, and what makes one get set aside?
Domestic contracts are enforceable in Ontario when they are in writing, signed and witnessed, but a court may set one aside for non-disclosure, lack of understanding, or ordinary contract grounds such as duress.
Marriage contracts and cohabitation agreements are expressly permitted by Part IV of the Family Law Act. To be valid the contract must be in writing, signed by both parties and witnessed. Parties can agree in advance on property division and spousal support.
The most common ground for setting a domestic contract aside is failure to disclose significant assets, debts or other liabilities existing when the contract was made. A court may also set it aside where a party did not understand the nature or consequences of the contract, or on ordinary contract law grounds such as duress or unconscionability.
Two protections carry most of the weight in practice: complete sworn financial disclosure exchanged before signing, and independent legal advice for each party, documented. Agreements signed days before a wedding without either are the ones that fail.
Source: Family Law Act, R.S.O. 1990, c. F.3, Part IV
This work is handled by Vyshnavie Manmatharajah (Family law / separation). Read more about family law / separation at VK Law Group, or send us the facts and we will tell you where you stand.
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