Make sure marriage contracts reflect reality

By Staff

Couples with cohabitation agreements or marriage contracts should ensure the intent of the contract reflects reality to avoid potentially messy situations in the event of a split, says St. Catharines family lawyer Sharon Silbert.

For instance, if the agreement provides that the family home or an expensive car will remain the property of one spouse alone in the event of a split, the other spouse should not make financial contributions to that asset, says Silbert, principal of Sharon B. Silbert Professional Corporation.

“If life goes according to plan and people actually live their lives the way that the agreements are set up, then there is no problem,” Silbert tells “But what happens when they don’t?”

Such situations can arise if the spouse who is expected to maintain ownership of a house and be responsible for associated costs, for example, runs into financial difficulty, she says. Naturally, their loved one often steps in to assist. But if the relationship ends, the situation raises questions around whether the partner who helped pay the bills is entitled to a portion of the home’s value despite what the original agreement contemplated, Silbert says.

“Couples should ensure they amend their agreement if circumstances change through a relationship,” she says. “People should be very careful about how they are managing their finances on a day-to-day basis, and consider the potential implications of a separation given the existing contract.”

Silbert says couples should have open and frank discussions about family finances, and what it means if one spouse’s contributions change. For example, would it mean one spouse gets a portion of the home or car’s value in the event of a separation? Or would the contributions be treated as a loan?

“The situation can become complicated if the outcome is not specifically contemplated by the original agreement,” Silbert says.

Another way to avoid unnecessary issues on separation is to ensure a marriage contract or cohabitation agreement includes a “Plan B,” she says. The document would clearly outline what happens if one spouse makes financial contributions to a home, cottage, or valuable asset in which they do not have an ownership interest.

“If a ‘Plan B’ is not included in the contract, or it’s not amended, you’re going to end up with a messy situation where you have lawyers arguing over interpretation,” she says.