Marriage evokes thoughts of fairy tale romance, soulmates, and lifelong commitment and devotion to your partner. So, it can be awkward when you have to ask the love of your life to sign an agreement anticipating the end of your relationship. A marriage contract is a legal document signed by both spouses which defines how your family property will be divided and what support will be provided to you, your spouse, and your children following divorce or the death of a spouse.

Although marriage contracts are criticized as being unromantic and uncomfortable, they are far from impractical. Even when the court system was paralyzed by COVID-19 in 2020, there were over 42,000 divorces granted in Canada. As with our previous discussion about the benefits of cohabitation agreements for common-law partners, there are many benefits to having a marriage contract. Marriage contracts provide for increased certainty, flexibility, and customization within the current legislative regime; for the protection of your assets; and helps to prevent lengthy, bitter, and expensive court battles. However, there are several limitations and restrictions when it comes to enforcing these contracts. This leaves many people wondering at the end of their relationship: is my marriage contract actually enforceable? Here are five things to consider:

  1. When Do I Have to Sign a Marriage Contract?

Although the name implies that you must be married, you do not have to wait until marriage to sign a marriage contract. Marriage contracts are available to married couples and couples who intend to marry; however, for the latter, the contract does not come into effect until the date of marriage. Likewise, you are free to sign a marriage contract even years after marriage. If you are in a common law relationship and already have a cohabitation agreement, then that agreement will be deemed to be a marriage contract if you marry your common law partner.

  1. What are the Requirements for a Marriage Contract?

There are strict procedural guidelines that must be followed for a marriage contract to be enforceable. The document must be in writing, signed by the couple, and witnessed. This means that oral marriage contracts are not valid in Ontario.

  1. What Can Be Included in my Marriage Contract?

Marriage contracts can include terms related to the ownership in or division of property, support obligations, the education and moral training of the your children, and any other matter related to the settlement of the yours and your partner's affairs. However, as a previous blog of ours discussed, several matters cannot be included in a marriage contract, including:

  1. Can my Marriage Contract Be Set Aside by the Courts?

In Canada, courts tend to favour the validity of marriage contracts and strive to "respect private arrangements that spouses make for the division of their property on the breakdown of their relationship."1 However, even if a marriage contract is in proper form and contains no prima facie invalid terms as discussed in the previous section, courts may exercise their discretion to set it aside.

Courts can set aside any provisions which they consider to not be in the best interests of any of your children or which are unreasonable in regards to the Child Support Guidelines or otherwise in relation to the support of a child.

Section 56(4) of the Family Law Act also lays out specific circumstances in which courts can set aside a marriage contract or a provision within it:

  1. if a party to the contract failed to make full and accurate financial disclosure in regard to significant assets, or debts and other liabilities;
  2. if a party to the contract did not understand the nature or consequences of the contract; and
  3. if there are any other grounds present to justify setting aside a contract under general contract law, including unconscionability, duress, undue influence, fraud, or misrepresentation.

However, this section is not a "get-out-jail-free" card for people trying to invalidate their marriage contract. This section does not apply if you signed the agreement while knowing your partner's financial disclosure was inadequate. Courts will generally also refuse to set aside contracts if you simply failed to seek legal advice and if you failed to use due diligence in seeking disclosure.

The Ontario Court of Appeal set out a two-stage test to determine whether part or all of a marriage contract can be set aside in Le Van v Le Van. The applicant must meet the following conditions:

  1. Have any of the circumstances set out in section 56(4) of the Family Law Act (as set out above) been engaged?
  2. Is it appropriate for the court to exercise discretion to set aside some or all of the agreement?2

If this test is met, then the court can intervene to declare some, or all, of your marriage contract unenforceable. As these applications come down to the discretion of the courts, it can be difficult to predict how challenges will play out. To make your marriage contract as strong as possible, it is best to avoid engaging the above circumstances altogether. For your part, you and your partner should be honest when disclosing your financial situation and seek independent legal advice before signing.

  1. What Happens if my Marriage Contract is Unenforceable?

If you and your partner divorce or if one of you dies and you do not have a valid and enforceable marriage contract, then the default rules under the Family Law Act apply.

If you are uncertain about whether your marriage contract is enforceable or want to ensure that your marriage contract is enforceable, it is always good practice to consult with a family lawyer.


1. Hartshorne v Hartshorne, 2004 SCC 22 at para 9.

2. Le Van v Le Van, 2008 ONCA 338 (CanLII) at para 51.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.