Marriage Agreement - Template, Sample Form to Complete Pro · EN-CA-law

MARRIAGE AGREEMENT

(Made pursuant to the applicable family property and matrimonial law of the Province of ________)

THIS MARRIAGE AGREEMENT (the "Agreement") is made on the ________.

BETWEEN:

________, of ________ (the "First Party");

AND:

________, of ________ (the "Second Party");

(individually a "Party" and collectively the "Parties").

RECITALS

A. The Parties intend to marry one another and wish to enter into this Agreement as a marriage agreement (also known as a domestic contract or pre-nuptial agreement) in accordance with the applicable family property legislation of the Province of ________ and the Divorce Act (Canada).

B. Each Party has made full and complete financial disclosure to the other as set out in Schedules "A" and "B" attached hereto.

C. Each Party has had the opportunity to obtain independent legal advice, fully understands the nature and consequences of this Agreement, and is entering into it freely, voluntarily and without undue influence, coercion or duress.

D. The Parties intend that this Agreement govern their respective rights and obligations during the marriage, and upon separation, annulment, divorce or death.

NOW THEREFORE in consideration of the mutual covenants and agreements contained herein and the marriage to be solemnized between the Parties, the Parties agree as follows:

§ 1. MARRIAGE, DOMICILE AND COHABITATION

1.1 The Parties intend to be married on ________ at ________.

1.2 At the time of the marriage, both Parties will be ordinarily resident in ________.

1.3 The Parties began cohabiting on ________.

1.4 This Agreement takes effect upon the solemnization of the marriage between the Parties.

§ 2. OWNERSHIP AND DIVISION OF PROPERTY

(a) Disclosure of Assets and Liabilities

2.1 The First Party represents and warrants that Schedule "A" contains a complete and accurate disclosure of all property registered in the First Party's name or of which the First Party is the beneficial owner, and of all debts and liabilities, whether presently existing or contingent. The Second Party represents and warrants that Schedule "B" contains a complete and accurate disclosure of all property registered in the Second Party's name or of which the Second Party is the beneficial owner, and of all debts and liabilities, whether presently existing or contingent.

(b) Classes of Property to Remain Separate

2.2 Except as otherwise specifically provided in this Agreement, neither Party will under any circumstances acquire any interest in the following property (the "One Party Property"), which will be and remain the sole and exclusive property of the Party to whom it belongs throughout the marriage and upon separation, divorce, annulment or dissolution of the marriage:

(I) all property identified elsewhere in this Agreement, or in Schedule "A" or Schedule "B", as the One Party Property of a Party;

(II) any property acquired by a Party by inheritance, gift from a third party, or as the proceeds of a personal injury settlement;

(III) ________.

(c) Value of Assets and Liabilities

2.3 The current assets and liabilities of the First Party are set out in Schedule "A", and those of the Second Party are set out in Schedule "B". The values stated in those Schedules are the fair market values as of ________. The liabilities set out in each Schedule represent the total outstanding and contingent liabilities of each Party as of that date.

(d) Spousal Contribution and Stay-at-Home Party

2.4 If the Parties intend that either Party obtain an interest in One Party Property by direct or indirect contribution, they may agree in writing, stating the interest each Party will have, and shall attach such writing to this Agreement.

2.5 If one Party (the "Stay-at-Home Party") terminates his or her employment in order to remain in the home to care for the children of the other Party (the "Working Party") or any children of the marriage:

(1) the Stay-at-Home Party will have a fifty (50) percent interest in all One Party Property acquired by the Working Party from his or her income from all sources during the period of such unemployment, subject to any liabilities related to the acquisition of those assets; and

(2) the cost of maintaining the One Party Property of the Stay-at-Home Party, net of any income derived therefrom, will be paid as a household expense and will not be subject to reimbursement to the Working Party.

2.6 Within six (6) months after the date of separation of the Parties, ________ will receive an amount equal to ________ percent for each year of cohabitation during the marriage (to a maximum of fifty (50) percent) of the Net Value of the One Party Property of the other Party. "Net Value" means the appraised value of all the One Party Property of that other Party, less all financial encumbrances registered against the One Party Property and all other debts of that Party related to the acquisition, maintenance, operation or improvement of the One Party Property outstanding at the date of separation.

(e) Tracing and Compensation for Benefits

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(f) Gifts or Transfers Between the Parties

2.8 Nothing in this Agreement prevents either Party from making gifts or testamentary dispositions to the other Party; however, the delivery of property of a value over $________ from one Party to the other will be deemed not to be a gift unless evidenced in writing and signed by the Party making the gift.

(g) Gifts from Third Parties

2.9 Any gift given to either or both Parties from a person related to one Party will be owned by the Party related to the donor, unless the gift is of a personal nature given to the Party not related to the donor.

2.10 Any wedding gifts given to either or both Parties, including gifts of money, will be owned by the Parties equally, except where it is evident from the nature of the gift, or of property purchased with the proceeds of a monetary gift, that it will be used exclusively by one Party (as in the case of clothing).

(h) Division of Property on Separation or Dissolution

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(i) Valuation by Arbitrator

2.12 If the Parties are unable to agree as to the value of any registered retirement savings plan, pension plan or other property to be divided or valued under this Agreement, the calculation of value in connection with tracing, the effect of any income tax consequences of a transfer, or any other matter concerning the division of assets and liabilities, the Parties agree that the matter will be referred to a qualified valuator or chartered professional accountant of the Parties' choice, who will act as sole arbitrator and whose determination will be final and binding upon the Parties.

(j) Dispute Resolution

2.13 If the Parties are unable to agree upon the choice of valuator, accountant or arbitrator, or upon a listing agent, listing price, sale price or any other matter in connection with the valuation or sale of property under this Agreement, either Party may apply to a court of competent jurisdiction for the determination of the dispute.

§ 3. SUPPORT OBLIGATIONS

(a) During the Marriage

3.1 The primary obligation of support for each Party is on that Party. One Party will only be called upon to support the other where there is a genuine inability of that Party to support himself or herself, and such assistance will continue only while genuine inability exists.

3.2 If any children are born of or adopted into the marriage, each Party will be responsible for the financial support and care of such children in accordance with their respective abilities and the applicable law.

(b) Spousal Support on Separation

3.3 Both Parties are self-supporting at present and acknowledge that they will not require spousal support in the future unless a Party becomes incapacitated as a result of accident or illness. Notwithstanding any provision of this Agreement, the Parties acknowledge that the right to apply for spousal support, and a court's jurisdiction to order spousal support, cannot be entirely ousted by contract, and that any such provision is subject to review by a court of competent jurisdiction.

3.4 Each Party, although not requiring support at this time, will have the right to apply for spousal support up to ________ after the date of separation if, prior to that date, the Party in question:

(I) suffers grievous physical incapacitation resulting in an involuntary substantial reduction in income;

(II) has not remarried; and

(III) has not resided with an unrelated adult person in a conjugal relationship for a period of six (6) months or more.

3.5 The need of a Party for support will be assessed on the assumption that each Party is entitled to a living standard similar to that enjoyed during the marriage, subject to the applicable law and the Spousal Support Advisory Guidelines.

(c) Child Support on Separation

3.6 If the Parties separate and there are children of the marriage, the Party with whom the children do not primarily reside (the "Paying Party") shall pay to the other Party (the "Receiving Party") the Child Support Sum (defined below) for the support of the children of the marriage, commencing on the first (1st) day of the month following separation. The Child Support Sum will be based on the number of children in the Receiving Party's care who:

(I) have not moved away from the home of the Receiving Party;

(II) have not married;

(III) have not attained the age of majority;

(IV) are attending a recognized institution of learning;

(V) have not become self-supporting; and

(VI) have not died;

(each an "Event" and collectively the "Events").

3.7 Once an Event has occurred with respect to a child, that child will no longer be included in calculating the Child Support Sum. When an Event has occurred with respect to all children of the marriage, the obligation of the Paying Party to pay support for the children of the marriage will cease.

3.8 "Child Support Sum" means the quantum of child support determined in accordance with the Federal Child Support Guidelines. The Parties acknowledge that the right of a child to support cannot be bargained away and that any provision of this Agreement respecting child support is subject to review and variation by a court of competent jurisdiction in the best interests of the child. For the purpose of determining the appropriate child support, the Parties shall exchange, on an annual basis, their income tax returns and notices of assessment and reassessment, and shall promptly notify each other of any material change in income.

(d) Health and Dental Insurance

3.9 The Party identified as ________ shall maintain such dental and medical insurance (beyond any government health program) as is offered through his or her employment for the other Party and the children of the marriage, for so long as:

(I) the Parties cohabit, and if they separate, for so long as the other Party and the children are entitled to support under this Agreement;

(II) such coverage is available through that Party's employment; and

(III) the other Party and the children qualify for coverage under the terms of the policy.

(e) Post-Secondary Education Costs

3.10 The Parties confirm their intention that any children of the marriage be encouraged to attend a post-secondary educational institution, and that the Parties will be equally responsible for the following costs each year for each child, for so long as the child is in continued and regular attendance at a university, college or vocational institution in a course acceptable to each parent and maintains a passing average:

(I) tuition;

(II) the cost of required textbooks; and

(III) on-campus residence expenses during the school terms.

§ 4. INCOME

4.1 All income of the Parties, exclusive of income from One Party Property, will be deposited into a joint bank account in the names of both Parties, to be used for usual household and family expenses. If, at the end of each fixed monthly period of the marriage, the joint bank account has a balance greater than $________ after deducting all outstanding liabilities, the excess will be divided equally between the Parties. Either Party may spend or invest such monies as he or she sees fit, free from the dictates of the other, and any property purchased by a Party with such money will be that Party's One Party Property unless otherwise agreed in writing.

§ 5. HOUSEHOLD EXPENSES

5.1 The Parties will share equally in their household and living expenses, including, but not limited to, food, household goods, utilities, internet, furniture, appliances, dishes, linens and holiday expenses. Each Party shall pay his or her share of the household and living expenses into a joint bank account monthly, to be used by either of them for such purposes.

§ 6. MATRIMONIAL HOME

(a) Ownership

6.1 The Parties are, or will upon completion of purchase be, the registered and beneficial owners as joint tenants of the lands and premises located at ________ (the "Matrimonial Home"), which property is subject to the following financial encumbrances:

________.

6.2 The Parties acknowledge that the Matrimonial Home is subject to the statutory possessory rights afforded to spouses under the applicable family or homestead legislation of the Province of ________, which rights cannot be waived in advance except as permitted by law.

(b) Encumbering the Matrimonial Home

6.3 Neither Party may further encumber the title to the Matrimonial Home in any manner without the prior written consent of the other Party.

(c) Upkeep

6.4 The Parties will share equally in all expenses relating to the Matrimonial Home, including, without limitation, financial encumbrances, house insurance premiums, taxes, upkeep and maintenance.

(d) Sale

6.5 In the event of the sale of the Matrimonial Home for any reason, the Parties will share the net proceeds in accordance with their respective contributions to the purchase price, after deducting financial encumbrances, real estate commissions and legal fees for the sale.

6.6 If (I) the Parties separate; (II) a divorce is granted; (III) an order is made for judicial separation; or (IV) a declaration of nullity of the marriage is made; then the Matrimonial Home will forthwith be listed for sale at a listing price agreeable to both Parties, sold, and the proceeds divided as set out above. If the Parties cannot agree upon a listing agent, listing price, sale price or any other matter in connection with the sale, either Party may apply to a court of competent jurisdiction for the determination of the dispute.

(e) Option to Purchase

6.7 If any of the events in section 6.6 occurs, and if either Party wishes to purchase the other Party's interest in the Matrimonial Home, he or she may notify the other Party in writing. The first Party to so notify the other shall be entitled to purchase the other Party's interest. If the Parties cannot agree upon the purchase price within ninety (90) days, it will be determined by subtracting one half of the financial encumbrances and projected real estate commission (based on the standard commission payable through the Multiple Listing Service of the real estate board having jurisdiction in ________) from one half of the average of the appraisals of two qualified real estate appraisers, one chosen by each Party, the cost of which will be borne by the Party choosing the appraiser. The purchase price will be paid within thirty (30) days after the Parties agree upon the amount, or, failing agreement, within thirty (30) days after the Parties obtain the last of the two appraisals. If neither Party wishes to purchase, the Matrimonial Home will be sold and the net proceeds (after deducting financial encumbrances, real estate commissions and legal fees) divided equally. If the Parties cannot agree on any matter in connection with the sale or transfer, either Party may apply to a court of competent jurisdiction.

(f) Possession on Separation

6.8 Each Party will be equally entitled to possession of the Matrimonial Home until its sale or until one Party purchases the other Party's interest in accordance with this Agreement, subject to any order of a court of competent jurisdiction. If the Parties cannot agree as to possession in the interim, either Party may apply to a court of competent jurisdiction.

§ 7. MATRIMONIAL HOME FURNISHINGS

7.1 All furniture, household effects and other chattels used in the Matrimonial Home during the marriage will be owned by the Parties equally and jointly, whether owned by one Party prior to the marriage or purchased by either or both Parties thereafter. On breakdown of the relationship, items not distributed by agreement will be sold and the net proceeds divided equally between the Parties.

§ 8. PENSIONS AND REGISTERED PLANS

8.1 Each Party will share equally in the increase in value, above the value at the date of the marriage, of any registered retirement savings plan and pension of the other Party, regardless of the date of contribution or acquisition. If (I) the Parties separate; (II) a divorce is granted; (III) an order is made for judicial separation; or (IV) a declaration of nullity of the marriage is made; the equal share of such increase will be transferred to the registered retirement savings plan of the other Party or, in the case of a pension, the owning Party shall hold the other Party's equal share in trust for him or her, subject to the applicable pension benefits legislation and any required division or assignment thereunder.

§ 9. RELEASE OF CLAIMS

9.1 Except as otherwise provided in this Agreement, each Party hereby releases and discharges the other Party, and the heirs, executors, administrators and assigns of the other Party, from all rights, claims and demands which he or she may have or acquire under the laws of any jurisdiction, including but not limited to any right or claim in or to the property of the other Party, any right to share in the estate of the other Party upon death whether testate or intestate, and any right to act as administrator or executor of the estate of the other Party, save and except as may be expressly provided in this Agreement or by a will subsequently made by either Party. Nothing in this section releases or limits any right to child support or any right that cannot lawfully be waived by contract.

§ 10. GENERAL PROVISIONS

(a) Independent Legal Advice. Each Party acknowledges that he or she has had the opportunity to obtain independent legal advice with respect to this Agreement, fully understands its nature and consequences, and is signing it freely and voluntarily without undue influence, coercion or duress. The First Party received independent legal advice from ________, and the Second Party received independent legal advice from ________.

(b) Full Disclosure. Each Party acknowledges that the other has made full and complete disclosure of all property, assets, liabilities and income as set out in Schedules "A" and "B", and that each is satisfied with the disclosure provided.

(c) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of ________ and the federal laws of Canada applicable therein.

(d) Severability. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, that provision will be severed and the remaining provisions will continue in full force and effect.

(e) Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, representations and agreements, whether written or oral, with respect to its subject matter.

(f) Amendment. This Agreement may only be amended, modified or varied by a written instrument signed by both Parties and witnessed in the same manner as this Agreement.

(g) Binding Effect. This Agreement will enure to the benefit of and be binding upon the Parties and their respective heirs, executors, administrators and assigns.

(h) Court Review. The Parties acknowledge that this Agreement is subject to review and variation by a court of competent jurisdiction to the extent required by the applicable family property legislation, the Divorce Act (Canada) and the principles of fairness recognized at law, particularly with respect to child support, spousal support and the matrimonial home.

IN WITNESS WHEREOF the Parties have executed this Agreement on the date(s) indicated below.

FIRST PARTY

_________________________________ (signature)

________
Date: ________

WITNESS

_________________________________ (signature)

Name: ________
Address: ________
Date: ________

SECOND PARTY

_________________________________ (signature)

________
Date: ________

WITNESS

_________________________________ (signature)

Name: ________
Address: ________
Date: ________

SCHEDULE "A" — FINANCIAL DISCLOSURE OF THE FIRST PARTY

Assets: ________

Liabilities: ________

Annual income: ________

SCHEDULE "B" — FINANCIAL DISCLOSURE OF THE SECOND PARTY

Assets: ________

Liabilities: ________

Annual income: ________