Cohabitation agreements are usually entered into by unmarried couples. They can be signed before they start cohabiting or while they are doing so. They can be stated to become marriage contracts if the parties subsequently marry. They can deal with all financial aspects of their relationship, including rights and obligations on its termination, but not custody or access.
These can be entered into prior to marriage or after marriage but before marriage breakdown. The same limits that apply to cohabitation agreements apply here.
The following issues can be dealt with in a marriage contract:
- Ownership in or division of property
- Support obligations
- The right to direct the education and moral training of children but not the right to custody or access to children; and
- Any other matter in the settlement of the parties’ affairs
However, a provision purporting to limit a spouse’s right to possession of the matrimonial home is unenforceable, as are any other restrictions of a spouse’s rights under Part II of the FLA.
They deal with all rights and obligations arising from the relationship and its breakdown, usually on a permanent basis.
A paternity agreement is usually required in situations where the biological parents of a child, who are not married, are ending their relationship with one another. If the parents cohabited and then separated, a separation agreement would be required instead.
The purpose of a paternity agreement is to set out the decision-making authority of each parent regarding the child’s needs. In making these decisions, the parents should consider the child’s best interests. Decisions include custody and access and child support. Child support issues will often address monthly child support, child-care costs, extra-curricular activities, and postsecondary education.
Pursuant to s. 51 of the FLA, family arbitration is defined as an arbitration that deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement, or paternity agreement.
Before any arbitration proceeding may commence, both parties must give their consent to participate by signing an arbitration agreement.
This agreement stipulates that the parties waive the right to litigate the matter in court and sets out the conditions surrounding the arbitration, including
- Who will arbitrate?
- Where and when the arbitration will occur; and
- What issues will be arbitrated
It is important to carefully draft the arbitration agreement since the arbitrator is only authorized to decide issues that are specifically included in the agreement. In other words, any decisions made on issues that are not included in the initial agreement are unenforceable.
Any determinations made by the arbitrator are incorporated into an award, which binds both parties and is legally enforceable. The conditions for enforceability are set out in s. 59.6(1) of the FLA.