MARRIAGE CONTRACTS
A written contract between two spouses outlining the spouses’ respective responsibilities and obligations. Some contracts also include agreements as to how property and ongoing obligations will be shared if the marriage breaks down. The weight given to a contract or an agreement is often dependent upon whether both parties’ have had independent legal advice.

Marriage contracts include pre-nuptial and post-nuptial agreements. In a pre-nuptial agreement, the parties enter the contract before the marriage. In a post-nuptial agreement, the parties enter into a contract after the marriage.

A marriage contract allows the spouses to increase the control they have over property division and spousal support upon separation by agreeing to certain issues in advance. This can save the parties’ time and money upon separation as a properly drafted marriage contract greatly reduces the need for litigation.

There are subtle differences between the various types of marriage contracts and the lawyers at Helm Family Law LLP can assist you in drafting your marriage contract so as to make sure it stands up in court if you and your spouse separate.

COHABITATION AGREEMENTS
A domestic contract signed by two people who are living together or intend to live together but not marry. In it they may provide for ownership and division of property, support and any other matter affecting their relationship. Parties cannot contract out of child support as that right belongs to the child. Therefore, a cohabitation agreement would not protect a person from ultimately paying child support, not only for the couple’s own children, but also for a child to which one parent stood in the place of a parent (in loco parentis).

MINUTES OF SETTLEMENT
Also known as a Divorce & Property Contract, a Settlement Agreement or a Separation Agreement, these are contracts which set out the parties’ agreement in the areas of custody, access, child support, spousal support and property. The Family Property Act (and the Matrimonial Property Act) allows a person to contract out of the legislation if they do so with the help of independent legal advice. The Courts are slow to overturn contracts concerning spousal support, custody and access if entered into with independent legal advice; however, parties cannot contract out of child support as it is the right of the child.

Although these agreements usually signify that all issues have been settled so that the parties can finish applying to the Courts to obtain a divorce through a procedure known as a “desk divorce” or uncontested divorce, these agreements do not allow a person to remarry. In order to remarry, the parties must have a Certificate of Divorce.

INDEPENDENT LEGAL ADVICE

Independent Legal Advice is when a lawyer provides advice on a family agreement, whether that be a prenuptial agreement, post-nuptial agreement, cohabitation agreement, separation agreement, or minutes of settlement.

The purpose of this independent legal advice is so that you understand the nature and effect of the document that you are signing and to demonstrate that the agreement was executed separate and apart from the other party. Without independent legal advice, a family agreement may in some cases by overturned, or ignored, by the court.

The lawyers at Helm Family Law LLP are able to assist you in understanding your family agreement, making sure it is drafted to align with your intentions, and providing independent legal advice in relation to the agreement so that it will be binding in court.