Part IV of the Family Law Act recognizes cohabitation agreements, marriage contracts and separation agreements with which parties may override statutory rights, to an extent. Section 52 of the Family Law Act pertains to marriage contracts which may be made by two people who are married to each other or who intend to marry each other.

Section 53 governs the making of cohabitation agreements, while Section 54 of the Family Law Act governs separation agreements. Although parties are generally encouraged to contract between themselves in making their private matrimonial and family arrangements, the Family Law Act sets out the formal rules and requirements regarding parties’ capacity to contract and the limits to which parties are free to govern their own relationship. One example of the limits to this freedom to contract is support obligations. Parties are generally permitted under the Act to agree on spousal support obligations within their marriage contract, separation agreement and even their cohabitation agreement. However, any provision within the agreement stipulating that a party’s rights are dependent on remaining chaste upon separation is unenforceable. The Act will recognize the validity of provisions in a domestic contract that terminate upon remarriage or cohabitation with another individual.

We regularly draft cohabitation agreements, marriage contracts and separation agreements. Please contact us for more information.