There are many advantages to making a contract for your relationship. You get a chance to find out your partner’s views on financial responsibility. You may find out career plans. You know how your property will be divided if you separate. There may be a family business or family assets that the family wants to control and maintain separate and apart from your partner.
The type of the contract will depend upon what type of relationship you are in:
For your contract to be enforceable, each of you must have independent legal advice. Both of your lawyers will be required to sign a separate certificate stating that independent legal advice has been given. Legally binding contracts require offer, acceptance and consideration. Consideration is usually something of value that passes between you and the other party. For example, consideration may be the changing of title on your home or your car from your sole name to both your names.
Be very careful what you put into your contract. The Court will not enforce a contract if it offends public policy or contains terms that are simply not enforceable. For example, if you have a term that asks for personal services such as laundry duties that term would not be enforceable by the Courts. If you have a term that says there will be no children of the relationship or that the marriage will end after a certain number of years, that term is also not enforceable.
Think carefully about the terms you want included in the contract. Only include terms you are prepared to take responsibility for after the contract is signed.
Think carefully before you enter into joint debt and address it in the contract. For example, if you cosign a loan for your spouse at the bank for a car loan and your spouse does not make the regular payments, or you separate and they fail to make the payments the bank will come after you even if you do not have the car. You must pay the bank because you cosigned the loan. If you have a contract that says your spouse takes full responsibility for that particular debt, you could then sue your spouse for breach of the contract. However, this is still no guarantee of recovery by you.
You and your spouse must agree on every term of the contract. The terms may address the following issues of your relationship:
Terms should also be included that allow you and your partner to change the contract according to changing circumstances. A term should be added that states the contract may be reviewed on request by one of you. For example, if you both decide to have children but have no term in the contract addressing the care of the children, the agreement likely needs to be amended. All major changes to the contract must be in writing. Both of you must sign the amended contract and have it witnessed by 2 people and get independent legal advice again. You should have a lawyer review the original contract and the new contract to ensure that the changes you make are appropriate and your rights are protected.
It is sometimes important to include a term that automatically ends the contract when a certain event occurs. For example, the contract may end on the day that you have a child; the youngest child reaches the age of 18, or on the day of a divorce.