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Do You Need a Prenuptial Agreement?

may 12, 2021 | marriage & divorce
a pen and contract with a pair of rings

We've all heard of extravagant Hollywood prenuptial agreements, where celebrities ask their future ex-spouses for rare courtside tickets, expensive beauty treatments and compensation if their spouse cheats. But for most people, the purpose of a prenuptial agreement is slightly less dramatic: broadly speaking, it is a contract that sets out the property, assets and debts of each partner before marriage - and determines how each will be divided should there be a split.

Here are five of the most commonly asked questions about a prenup in Canada, beginning with the most obvious:

 

1. Is a prenuptial agreement legal in Canada?

Absolutely. A prenuptial agreement - also called a prenup or domestic contract or premarital or marital agreement - is a legally binding contract once it is signed by both parties, with witnesses, and in some cases, also notarized (Quebec).

2. Who's it for?

A prenuptial agreement is good for anyone who wants to protect their personal property should the marriage end. And since separating from a life partner can be a difficult and emotional time, having a prenup in place can give you one less thing to worry about by securing assets/property for yourself without a potential battle. If you are living together but not married, there are cohabitation agreements/civil union contracts. And if you're already married, you can still enter into a marital agreement.

3. What's in it?

The exact details of what can and cannot be included in a prenup varies from province to province. S. 52 of Ontario's Family Law Act sets out the parameters of a prenuptial agreement and is similar to other provincial laws in Canada. It states that a prenup can contain clauses pertaining to:

a. ownership in or division of property

b. support obligations

c. the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and

d. any other matter in the settlement of their affairs

There are important exceptions as to what you can include in the agreement - some rights regarding the matrimonial home cannot always be dealt with in a premarital contract, for example, so it is very strongly advised to seek legal counsel.

In Quebec, a marriage contract is used to stipulate which matrimonial regime is best for you (or you can adopt one of your own). Each regime has its own rules regarding the rights and powers you have over your property. If you don't choose a regime via contract, the province will decide for you (a partnership of acquests). Once you sign up with us, we can help you determine what best suits your particular circumstance.

4. How can I get one?

Because laws vary across Canada, you should seek legal counsel before drafting a prenup. For example, you cannot opt-out of supporting your children simply by signing a contract. So your lawyer will explain what you can legally put into a prenup based on where you live. They will make sure the contract will protect you should you split. And a marital contract where both parties are represented by lawyers is more likely to be enforced by a court if challenged. Reach out to us anytime for guidance.

5. What if my partner doesn't want a prenup?

Of course, both partners must consent to have a valid premarital/marital agreement. It requires each of you to be open, honest and transparent throughout the negotiation process, including full disclosure about your finances, debts, etc. Obviously, not everyone is excited about discussing divorce before you're even married. But a properly drafted agreement will be fair to you both and can lessen the emotional impact of separating because at least some of the next steps are spelled out. Consider approaching the idea early in your relationship and not a few weeks before marriage. Make a case for why a prenup is important to you - and why it is important for your partner, too. Your lawyer can advise you on this matter.

The Take-Away.

One critical reason why it is essential to have a lawyer draft your premarital, marital or cohabitation agreement is because having a professional handle the details may help you should the contract be contested by your former partner. A court will look at whether or not both parties were represented by lawyers, whether the terms of the agreement are fair or if one party was forced to sign under duress, for example. In general, a lawyer's involvement makes it harder for a court to overrule the contract. Get in touch with us. LegalShield Canada is here for you.

Articles on the LegalShield.ca website are for informational purposes only and do not constitute legal advice or opinion in any manner. Laws mentioned in the articles vary from province to province. Any links to third-party sites in our articles are for general information purposes only and LegalShield is not affiliated with, nor does it endorse, the content of linked sites. It is always advisable to seek legal counsel - and LegalShield can help.

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