Protecting yourself, your assets and your property is often a concern of spouses when entering into a marriage. A marriage contract or better known as a prenup or prenuptial agreement can protect either spouse from unwanted costs or loss should a marriage dissolve through separation, divorce or annulment. You might wonder how to get a marriage contract in Ontario and what a prenup agreement can and cannot do.
What is a Marriage Contract?
A marriage contract, otherwise known as a prenuptial agreement, is set out in the Family Law Act in section 52(1). It is created either before or after a marriage between two spouses for the purpose of agreeing on their rights and obligations in marriage or upon separation, annulment, dissolution, divorce or death. A marriage contract can include agreements on the ownership and division of property, support obligations, the right to direct education and moral training of their children and any other matter they wish to negotiate.
A marriage contract cannot deal with the right to decision-making responsibility (custody) or parenting time (access). A marriage contract can benefit both spouses in a marriage if used under the right circumstances. An experienced family lawyer can help you understand where and when a marriage contract might be beneficial.
Writing the Marriage Contract
Speak with a Lawyer
For a marriage contract to be enforceable there are specific form requirements that must be met. If the proper forms are not taken, the negotiated terms of the contract are void. Speaking to an experienced family lawyer will ensure not only that your contract is valid, but that you are properly represented throughout the contract writing process.
Understanding if a Marriage Contract is Right for Your Marriage
When you are legally married in Ontario, each spouse has rights and responsibilities throughout the marriage and they continue to exist during a separation, divorce or annulment. These include the right to spousal support, property rights, and child custody.
A marriage contract can be beneficial if you want to make an agreement on the division of assets, property, support or liabilities. If a spouse is looking to protect a trust fund or another asset, a marriage contract can be valuable. While it can be beneficial, in Ontario, a marriage contract has limitations when it comes to the matrimonial home, spousal support or child custody.
Matrimonial Home
Under section 18(1) of the Family Law Act, a matrimonial home is a property in which a person has an interest and was ordinarily occupied at the time of separation by the person and their spouse. Important to note, marriage contracts in Ontario cannot cover the division of the matrimonial home in the event of a separation or divorce. The matrimonial home will be separated equally between spouses through equalization payments.
Spousal Support
Spousal support can be set out in a marriage contract however, the circumstances of this agreement may change over time. If spousal support is set out in the marriage contract, it is subject to adjustment upon separation or divorce depending on changes in income and assets over time.
Child Custody
Decision-making responsibility (custody) and parenting time (access) cannot be negotiated through a marriage contract because Ontario law considers the best interests of the child at the time of the separation or divorce when deciding these matters.
When it comes to creating a marriage contract, what can and cannot be covered in the contract is confusing. Speaking with an experienced family lawyer will help you understand how a marriage contract will impact you specifically.
Preparing for the Marriage Contract
The process of preparing a marriage contract can be long and complicated which is why it is important to plan ahead. Once you are legally married in Ontario it can become more difficult to negotiate a marriage contract. The rights and responsibilities that come with marriage may contradict some of the terms you wish to negotiate in a marriage contract. If you are already married when negotiating a marriage contract, there is no obligation for either party to sign. This may leave you in a vulnerable position.
It is possible to negotiate a marriage contract after a marriage is legal, but if you wish to create a marriage contract, it is important to speak to an experienced lawyer to understand what this process entails.
Financial Disclosure
During the process of writing your marriage contract, each spouse will be required to disclose all assets, debts and liabilities. This can be an invasive process and reveal information that was previously unknown to the other party. However, for both parties to sign a contract they must both understand the terms upon which they are signing. Having a lawyer that can help you navigate this process successfully is important to protect yourself at the time of signing and in the future.
Getting a marriage contract in Ontario can be a confusing and time-consuming process. An experienced family lawyer can help you understand if this process is right for you. Contact Epstein & Associates to find a lawyer that will work to ensure a marriage contract is representative of your wishes.
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This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.