Domestic Contracts

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 34-48

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Domestic Contracts

A. DEFINITION OF DOMESTIC CONTRACTS

This chapter examines “domestic contracts” as they have been statutorily

dened in Canada. Even in the absence of statutory provisions, however, mar-

ried and unmarried cohabitants are legally entitled to enter into binding and

enforceable contracts. In some circumstances, the law restricts the extent to

which spouses or unmarried cohabitants can contractually waive or give up

rights that are otherwise theirs according to statute. For example, the splitting

of credits under the Canada Pension Plan between divorced spouses cannot

be circumvented by a spousal contract or separation agreement except where

provincial legislation specically permits such “contracting out.” Courts are

also entitled to override the terms of any spousal or parental contract that

attempts to release a parent from responsibility for child support.

Domestic contracts, insofar as they are expressly recognized under prov-

incial and territorial statutes in Canada, are formal written contracts signed

by the parties and witnessed. Married couples and unmarried cohabitants

of the opposite sex may regulate their rights and obligations during their

relationship or on its termination by the domestic contract. There are three

dierent kinds of domestic contracts: (1) marriage contracts; (2) cohabitation

agreements; and (3) separation agreements.

The right of married and unmarried couples to enter into agreements

or domestic contracts to regulate their aairs is expressly recognized by