Canada: Why You Shouldn't Be Scared Of Prenuptial Agreements

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We've all heard the infamous term 'prenup' in movies, TV shows, or from unsolicited family members. In Canada, prenuptial agreements are commonly referred to as marriage contracts or agreements — same concept, different term. This blog provides a crash course on marriage contracts, what they do, and why you should consider getting one.

WHAT IS A MARRIAGE CONTRACT?

To gather an understanding of what prenuptial and postnuptial agreements are and the difference between them, please refer to Is a Prenuptial Agreement Right for You? - Lerners by Joanne H. Stewart.

WHAT DO YOU NEED TO MAKE ONE?

The key requirements for making a valid marriage contract include that: (1) there is proper financial disclosure (information) exchanged by the parties; (2) the agreement is made in writing, dated, and signed in the presence of a witness; and (3) the agreement is voluntarily entered into and understood by both parties. A lawyer can assist you with understanding what financial information you should gather and exchange prior to preparing and entering into a marriage contract.

Even though these agreements are presumed to be voluntary and enforceable, they are not immune from scrutiny. A Court may set a marriage contract aside or deem it to be unenforceable if, at the time that it's entered into, there is any sort of duress or a failure of one or both of the parties to provide complete details about their income, assets, and debts.

WHAT CAN THEY INCLUDE?

Marriage contracts can outline how a couple's property will be divided, their spousal support obligations, and limited child-related issues (e.g., education) in the event that the marriage ends. Other topics that are often covered in these agreements include who takes on the couple's debts and expenses, what happens to the family business, and the distribution of gifts, for example. A lawyer can assist you with determining what should be included in your marriage contract, including issues that are unique to your specific circumstances.

However, there are certain topics that would not be enforceable (by a Court) if they were included in a marriage contract. For example, a marriage contract cannot limit a party's right to occupy the matrimonial home in accordance with Part II of the Family Law Act. Further, a marriage contract that sets out a partner's right to decision-making responsibility or parenting time with respect to their children may not be upheld if the parties later separate. Parenting time, decision-making responsibilities, and child support are all issues that will be dependent on the circumstances of the parties and the children at the time that the marriage ends. If litigation arises over a marriage contract, the Court is obligated to prioritize the best interests of the child. In other words, a marriage contract made years earlier may not be relevant or appropriate any longer when it comes to things like a parenting schedule or child support.

WHY SHOULD YOU HAVE ONE?

Having a marriage contract can give each spouse more confidence with respect to managing their finances and planning for the future. Entering into a marriage contract doesn't need to create hostility with your partner. These agreements can actually help strengthen your relationship by setting expectations early on and resolving disputes before they happen. Marriage contracts provide a proactive way to get your affairs in order and prepare for any breakdown in the relationship.