1. What are the differences between a prenuptial agreement and a cohabitation agreement?

1. What are the differences between a prenuptial agreement and a cohabitation agreement?

A prenuptial agreement is an agreement entered into by a couple prior to marriage spelling out how the couple’s assets and debts are to be divided and maintenance to be provided should the couple divorce. Prenuptial agreements require a full disclosure of each person’s financial position, and generally must be a written document in order to be legally enforceable. The court when considering the grant of ancillary relief is not obliged to give effect to the prenuptial agreement, but would give appropriate weight to such an agreement.  The court has the ultimate discretion granting the final order regarding financial provision and child issues albeit the terms of the agreement between both parties of the marriage.

A prenuptial agreement is made in contemplation of marriage while a cohabitation agreement is made when individuals plan to live together. A cohabitation agreement is a specific type of contract between two individuals who are not married but romantically involved and cohabiting. This sort of agreement can outline each person’s rights and obligations for issues such as financial support, distribution of property and child custody after the end of the relationship. Currently the cohabitants’ legal rights in divorce proceedings are limited to a claim for children’s maintenance and whether a cohabitation agreement would have any effect on such proceedings is yet to be tested in court. The cohabitant may proceed a claim upon the breach of the cohabitation agreement in the contract law regime.