Is A Marriage Contract/Prenup in Ontario necessary?
There are few areas of family law that are as misunderstood as the marriage contract/prenup in Ontario. Some people see this as a way of dooming a relationship by suggesting divorce is inevitable, while others see it as a way to strengthen their relationship and talk about the future when they are in a calm, positive, and non-confrontational state of mind.
What is a Marriage Contract?
Commonly referred to as a “prenup” or a “prenuptial agreement,” a marriage contract in Ontario is a written document between the couple that is completed before the marriage or after the marriage. It provides a plan for managing financial issues, debts, property issues, and spousal support should you separate or divorce. This can be instrumental in reducing conflict in the event of a divorce, and to ensure that all parties leave the relationship with a fair settlement based on their own agreement.
Sometimes a marriage contract in Ontario is called a prenuptial agreement or a prenup in Ontario, but it can also be written and signed after the marriage. A cohabitation agreement, in Canada, will automatically become a marriage contract should you marry, and will remain in place unless you choose to rewrite or modify the agreement at a later point in time.
Marriage contacts, as well as cohabitation agreements, are a benefit to all couples, including same-sex couples.
Why Spend the Money to draft a Marriage Contract/Prenup in Ontario?
When couples are newlyweds or planning a marriage, spending money to hire a Lawyer to draft a marriage contract may seem like money that does not need to be spent.
However, the drafting of a marriage contract by a Lawyer is a very low cost process for the most part in comparison to the consequences of not have this type of contract is separating. The couple can agree on all matters between themselves, and then use one Lawyer to draft the agreement into the correct legal language.
Each party should consider Independent Legal Advice on the draft. This involves having an independent Lawyer review the document and ensure you fully understand all implications of agreeing to the terms of the marriage contract/prenup in Ontario. This prevents confusion and also helps to avoid potential issues in the future with one spouse claiming they were coerced, manipulated, or even lied to about the agreement.
The cost of hiring a Family Lawyer to draft a marriage contract/prenup in Ontario and to obtain Independent Legal Advice and sign the document is very low compared to the legal cost of a contested divorce. It is also a way for the couple to commit to caring for each other financially and how assets and debts from the marriage will be handled if there is a divorce in the future.
Divorce Go offers flat-rate legal fees to draft your marriage contract/prenup in Ontario. We provide you with a questionnaire to be completed. You can insert the terms of the Agreement, information regarding all assets, and the way you would like property to be divided in the unfortunate case of separation. We draft the entire agreement and provide it to you for review and approval. Once both parties have approved, each can seek independent legal advice from a Lawyer at signing.
What is Included in a Marriage Contract/Prenup in Ontario?
All financial issues relating to the pooling of assets at the time of marriage, as well as assets and debts incurred during the marriage, can be addressed in the marriage contract. This includes considerations for future wealth, assets and financial obligations, and a well-designed marriage contract is designed to address not just the current assets of the couple, but those that can occur in the future.
In Ontario, as well as in other Canadian provinces and territories, the family law has provisions as to how property is divided. This is typically a division of assets between the husband and wife in equal measure. With a marriage contract in place, the specific provincial or territorial family law provisions on the division of property can be dismissed modified, and the terms contained in the marriage contract will be enforced.
It is possible to include spousal support in the marriage contract. It is also possible for one or both spouses to write in protection for specific types of assets they bring to the marriage. These types of provisions are often seen in cases where one spouse has significant wealth prior to the relationship or when there is the likelihood of one spouse receiving a substantial amount of money at some point in time in the future. The marriage contract/prenup in Ontario could provide some amount of this potential future income for the other spouse, but not necessarily an equal division.
There are also some things that cannot be written into a marriage contract. One of these issues is in the parenting and custody of any children of the marriage. These types of issues are decided by the court at the time of the divorce or settled in a separation agreement and are resolved based on the best interests of the children. As the marriage contract is developed well in advance of the separation and divorce, it is simply not possible to know the best interests of the children. At the time of the signing of many marriage contracts, the children are not born, which is another reason their custody and best interests cannot be predetermined in the marriage contract.
It is essential to talk to a family law Lawyer familiar with marriage contracts if there are stepchildren or children from other relationships included in the family. These children can be provided for in the marriage agreement if they would not be considered children of the marriage in a divorce.
What Does a Marriage Contract/Prenup in Ontario include?
For a marriage contract to be considered legal in Ontario, there are only a few basic requirements. Ideally, working with a family lawyer is the best option, ensuring all issues are included in the document and that it is written in compliance with the law.
For a prenuptial agreement to be legal, it must be in writing. This is a contact, and contracts cannot be verbal or implied, they have to be in writing in most cases. Your family lawyer can ensure all correct language and terms are used in the drafting of the agreement.
As mentioned before, each person should also have the draft marriage contract reviewed by a Family lawyer providing Independent Legal Advice. This is an easy way to have peace of mind in your understanding of the document and how it will impact your future in the event of a divorce. This is also a time for the lawyer providing ILA to ensure nothing has been missed or omitted that should be included in the document to secure your best interests and your future financial security.
In addition to drafting the document and having it reviewed by an independent legal professional, both parties to the agreement have to sign the document. The signing of the document must be witnessed, and the Lawyer can typically arrange for this to be completed at his or her office.
The information contained in the marriage contract/prenup in Ontario must be accurate, and the two people involved in the contract must be negotiating in good faith. This means they cannot be hiding assets or information that would impact the contract at the time of the negotiations and the signing of the agreement. Full Financial disclosure for marriage contracts is an extremely important step in the process. When there is lack of disclosure, there can be grounds in the future for one spouse to challenge the Agreement.
How do you start the discussion for a marriage contract/prenup in Ontario?
The concept of a marriage contract can be off-putting to some people. However, by approaching it well in advance of the wedding and at a time when the partner is relaxed and not stressed or under pressure, information about the importance and protection the contract provides for both people can be discussed.
Be sensitive to the other person’s concerns, and be sure to have information available about what a marriage contract is and what it is not. Focus on the ability to create a secure future where there are no surprises, and where you both understand your commitment to care for each other as the future unfolds and you begin your life together.