A cohabitation agreement or a marriage contract is a written agreement made between a couple who intend to live together or marry in which they agree, in advance, how their issues arising out of a future separation or divorce will be resolved. They can agree on many issues, including the division of their property acquired during their cohabitation or marriage, their spousal support obligations, and the protection of the property each of them brought into the cohabitation or marriage.
These agreements are generally entered into before the cohabitation or marriage. They can be entered into during the cohabitation or marriage, but for that to happen each party must agree. Ordinarily, the party who wants the agreement should make sure it is done before the cohabitation or marriage, and preferably well before.
A cohabitation agreement becomes a marriage contract upon marriage.
If a couple wishes to change a cohabitation agreement or marriage contract at a later date it must almost invariably be done in writing and the signatures must be witnessed.
Cohabitation agreements or marriage contracts, if done correctly, will withstand court scrutiny. For the most part, the court will rule that when a couple’s circumstances upon separation were within their contemplation at the time they entered into a cohabitation agreement or marriage contract, they should be bound by its provisions. However, the court will intervene in certain circumstances to set aside all or part of a cohabitation agreement or marriage contract, including where there has been inadequate financial disclosure or it was not negotiated in unimpeachable circumstances. Each party having had his and her own lawyer to give independent legal advice will help allay concerns a court might otherwise have. A good lawyer who has a cooperative client should be able to ensure that the agreement will stand if there is a separation or a divorce.