What you Must Know About a Prenuptial Agreement in Ontario before Signing One

No one wants to enter a marriage that ends in resentment or divorce. However, with the divorce rates in Canada at 2.1%, it is good to be prepared from the beginning.

While the divorce rate is declining in the country, couples still must take precautions to ensure that their rights are protected. So, if you want to learn more about a prenuptial agreement in Ontario before signing one, you have stumbled upon the right page.

Keep reading to learn everything about Ontario’s prenuptial agreements before signing one.

What is a Prenuptial Agreement in Ontario (Marriage Contract)?

Family Law Act Section 52 (1) rules this agreement and states that a prenuptial agreement in Ontario can be created for marriage. It can include many things, from obligations to property division and much more.

However, you can’t add custody or access matters into this contract where children are involved. It is typically created to benefit both the spouses in a marriage.

You can also hire a prenuptial agreement lawyer in Ontario to help you create this document.

Components of a Prenuptial Agreement in Ontario: What You Can Include

There are various components that make up a prenuptial agreement in Ontario. We have discussed each below in detail to help you understand what is included in this agreement:

1. Division of Property or Ownership

Division of assets can be tricky, which is why it is best to include this in a prenuptial agreement through a lawyer. If there is no prenuptial agreement in Ontario between you and your spouse, then the property will be allocated based on Ontario laws.

For example, married couples automatically become entitled to an equalization of net family property. When the marriage ends or the spouse dies, the right to equalization is triggered.

So, if you want to protect the assets you have brought into the marriage, you can opt for a prenuptial agreement in Ontario.

2. Legal Protection for Children

You can also utilize a prenuptial agreement in Ontario to protect the legal rights of your children. Be proactive and add important clauses to the agreement before you decide to have kids.

For example, a marriage contract can state how existing or future children will be brought up educationally and morally by the parents. Here are some things you and your spouse can discuss and add to the prenup:

• How much money you plan to contribute to your children’s education
• Religious or cultural practices
• Beliefs and values
• Specific subjects or schools your child will study at

3. Obligations of Spousal Support

Many people have this misconception that signing a prenuptial agreement in Ontario might mean waiving your rights to spousal support in the event of a divorce.

However, you and your spouse can choose the terms of spousal support in the marriage contract, giving you much more freedom to ensure better spousal support obligations.

You can also use this agreement to guarantee your right to spousal support. So, if you want peace of mind, you can add spousal support obligations to your prenuptial agreement.

4. Marital Responsibilities

You can also use the prenuptial agreement in Ontario to cover marital expectations and responsibilities. You can include everything from financial in the marriage contract, and stray away from making it extensive and adding non-financial duties.

Some of these can include the following:

• Who will stay at home when you have kids
• How you will spend money or obtain credit
• Who will be filing tax returns and paying the bills
• How you will handle your personal and joint bank accounts

These points will help clarify important matters in the marriage that will keep things going smooth.

What Not to Include in a Marriage Contract in Ontario

While there are certain things you can include in your marriage contract in Ontario, there are also certain limitations. According to the Family Law Act, you can’t set out the following issues in a prenuptial agreement:

1. Matters of the Matrimonial Home

According to Section 52.2 of the Family Law Act, any provision you add in the marriage contract will not affect the rights of each spouse to possess or live in the matrimonial home.

What this means is that each spouse also has the right to share the value of the home. So, even if the property is named under one spouse, both spouses will have equal rights to remain in the home.

This right will only change if there is a specific court order or some terms in the separation agreement in Ontario. Until then, one spouse can’t prevent the other from entering the matrimonial home.

2. Child Access and Custody

A prenuptial agreement in Ontario can’t contain most parenting decisions related to the child. That is because the court takes into account the best interests of the child before deciding matters such as child custody, parenting time, and more.

So, it is up to the court to decide what will happen in the event of a divorce or separation. Even a prenup agreement lawyer will not add such clauses to your marriage contract and advise you against it.

3. Immoral or Illegal Provisions

All around Canada, no region can add immoral or illegal provisions to their prenuptial agreement. In simple terms, this means that your contract can’t override any laws or statutes.

For example, any clause, including things that require you and your partner to commit illegal actions, can’t be part of the prenup. The courts will invalidate such provisions and set aside this part of the document.

If you want help drafting a solid prenuptial agreement in Ontario, then it is best to hire a prenup agreement lawyer. They will ensure all your clauses are valid and reflect the best interests of both parties.

Reasons to Sign a Prenuptial Agreement in Ontario

Every marriage has disagreements and fights, and fighting about finances is common. After all, you and your partner may have different values regarding finances and how to spend or utilize them.

Divorce and separation can cause these disagreements to magnify, which can leave one party in more power than the other. This is where a prenuptial agreement in Ontario comes in to protect both parties.

Let’s review some of the top reasons you should consider entering into a marriage contract:

1. Protecting Business & Personal Assets

When you get married, you might have some personal or business assets in your possession. These can include:

• Investment accounts
• Retirement funds
• Inheritances
• Heirlooms
• Family business
• And more

What you own before a marriage is known as premarital property, and just because you enter a marriage, it doesn’t mean that your premarital assets will turn into marital property.

However, if you use the premarital property to pay off marriage debts or make investments, then this can turn into marital property. By entering into a prenuptial agreement in Ontario, you will protect your premarital property.

You will have legal protection over your assets even if your marriage ends in a divorce or separation.

2. Settling Spousal Support Challenges

It is important to address spousal support in the prenup, otherwise this can lead to financial problems in the future. When one spouse earns a lot more than the other, then the payable amount to the other spouse can be significant.

When you opt for a prenup, you can add a specific spousal support amount for your spouse. In some cases, parties can even waive this amount.

It helps people add some structure and reduces the need for a judge to settle your spousal support issues. You can also place conditions to terminate these support payments if a spouse commits adultery while married.

3. Addressing Issues of Debts and Liabilities

When you are married, you don’t just bring in your assets, but also your debts. For example, you might have mortgage payments, student loans, credit card debts, and much more.

If you are the partner with less debts and liabilities, then you don’t want to be responsible for paying off their debts. So, you can use a prenuptial agreement in Ontario address any debts or liabilities both of you may incur in the relationship.

We help spouses define the premarital debt and then decide how they want to resolve these liabilities. In the long run, this will protect the spouse with less debt if the marriage ends in divorce.

4. Securing Children from a Previous Relationship

If you have children from a previous marriage, then creating a prenuptial agreement in Ontario will help protect your children. For example, you might want to reserve some of your assets for the children from your first marriage.

So, you can set how you want to secure your offspring, and decide who will inherit your assets through a prenup agreement.

5. Ensures Transparency between Partners

Finally, a prenuptial agreement in Ontario will ensure transparency between you and your partner. When creating this agreement, you have to disclose everything with your partner.

In the long run, this will save both of you from issues that might have risen had you not shared these details. If you want to begin your relationship with transparency and honesty, then a prenuptial agreement can help significantly.

How Much Does a Prenup Cost in Ontario?

On average, prenup cost in Ontario can range between $1,000 and $10,000. The cost will vary, depending on various factors, such as:

• Complexity: More complex financial concerns or situations will increase the legal fees of the prenup agreement
• Legal Representation: Hiring an experience prenup agreement lawyer will be more expensive for you
• Hiring a Mediator: If you opt for professional mediation during this time, it will also increase your costs

You can talk to a family lawyer to discuss how much it will cost your specific circumstances. However, you can expect to pay anywhere between this range.

How to Get a Prenup in Ontario?

Getting a prenuptial agreement in Ontario means opting for expert guidance and carefully considering various facets of your circumstances. There are various steps involved to help you get a prenup, which includes the following:

1. Understand what you Need

Before you begin creating a prenuptial agreement in Ontario, it is crucial to discuss your financial situation and what you want with a prenup agreement. For example, do you want to protect your assets, secure your financial future, or ensure the wellbeing of your children?

When you determine what you want, it will be easy to create a marriage contract around it. So, sit down with your partner, have a conversation, and discuss what you both need from the prenup.

2. Opt for a Prenup Agreement Lawyer in Ontario

Once you have discussed what you want with your spouse, it is time to visit a prenup agreement lawyer. After all, it is a legal document, and they will guide you with expertise on what you must do.

The lawyer will guide you through the process and ensure that you protect your rights and interests through this contract. You can get in touch with our expert lawyer to begin the process of marriage contracts.

3. Full Disclosure of Financial Circumstances

It is crucial to be transparent with your spouse when creating a prenuptial agreement in Ontario. This means you must disclose your:

• Expectations of inheritances and gifts
• Assets
• Income
• Liabilities
• And more

Both parties need to disclose such information to ensure that the prenuptial agreement is fair for everyone.

4. Drafting the Agreement

Once the prenup agreement lawyer has all the facts and your circumstances, they will draft the agreement based on these factors. They will guarantee that the agreement is reasonable, fair, and in compliance with the law of Ontario.

5. Review the Agreement and Sign

The prenup agreement lawyer can draft the contract for you, but you are not obligated to stick with it. If you need a second opinion, you can get another lawyer to review your document.

This will help you understand the implications and the agreement in detail. Then, once you and your partner are satisfied with the prenup agreement, you can sign the document.

Can you Write your Own Prenuptial Agreement in Ontario?

Yes, you can write your own prenuptial agreement in Ontario, but we advise against this practice. There are many prenuptial agreement templates online, but using them might do more harm than good.

A prenup agreement has to follow the requirements of the law. If you don’t follow these legal rules, a judge can declare your prenup invalid.

Let’s discuss this in detail.

Grounds for a Judge to Set Aside a Marriage Contract in Ontario

Here are the top grounds that a judge can use to set aside your marriage contract in Ontario:

1. It Doesn’t Comply with Contract Law

A prenup agreement is a legal contract, which is why it must comply with contract law to be valid. If the judge finds that the provisions are unfair or don’t comply with contract law, they can set aside the agreement.

Because of this, it is always better to hire a prenup agreement lawyer or ask one to review for you to ensure that it is not void in the courts.

2. One Spouse Doesn’t Understand the Prenup

It is important for the courts that both spouses completely understand the prenuptial agreement in Ontario and its implications. If the judges find that one party doesn’t understand the agreement, then they can set it aside.

We recommend you understand the prenup in advance and sign it. This will signify that you had enough time to go through the terms and sign the contract.

This is why it is better to let a prenup agreement lawyer create this document and ensure you understand before you sign.

3. There Has Been Failure to Disclose Important Financial Information

Finally, if there is failure to disclose financial information, then the judge can also set aside the prenuptial agreement in Ontario. A judge will always determine if both parties have informed the other about all their assets and liabilities.

Don’t leave anything out in your financial schedule so that you are not in a disadvantageous position. For example, if the judge finds that you hid some assets that should’ve been under the protection of the prenup, then they might be up for grabs.

So, be honest from the start, and be transparent with your lawyer. They will include everything important in the marriage contract to protect your legal rights.

How Long Does a Prenuptial Agreement in Ontario Last?

A prenuptial agreement in Ontario will last as long as your marriage, until you and your spouse want to change it. Another circumstance where it can cease to exist is if you add a date in the prenup stating it will be invalid at that date.

Other than that, the prenup agreement will last for the marriage duration. If you have any other questions regarding this matter, we recommend contacting our family lawyer to clarify any concerns you may have.

Common Myths about Prenuptial Agreements in Ontario You Shouldn’t Believe

There are many myths and misconceptions surrounding prenups throughout the world. People think it indicates a lack of trust or these things are only for the wealthy.

However, these statements couldn’t be further from the truth. It is crucial to separate facts and myths, which is why we have helped clarify these myths to help you make an informed decision about opting for a prenuptial agreement in Ontario:

Myth 1: Prenups are only for the Rich

Any couple whether rich or middle class will benefit from having Ontario prenuptial agreements. That is because the agreement helps resolve any finance-related disputes that may come up in the future.

So, in the long run, it will help you save your money and time as you set out your agreements beforehand.

Myth 2: Getting a Prenup means you Don’t Trust your Partner

Many people take prenups personally and think that it indicates there is no trust between partners. However, prenup means you are transparent and honest with your partner, which will only help strengthen your trust.

You will have to discuss your financial matters and reach a compromise that will help strengthen your marriage. So, if you want to be honest and transparent, then getting a prenuptial agreement in Ontario will help you do that.

Myth 3: Getting a Prenup Agreement is Expensive

Prenuptial agreements in Ontario are affordable and don’t take too long. The cost is relatively less compared to the litigation costs of sorting these matters in the future.

It is also crucial to choose the right prenup agreement lawyer that will take your budget into account. If you require a knowledgeable, compassionate, and affordable family lawyer in Ontario, then you contact us for your prenup agreement needs.

Myth 4: It is only for the Partner who Has more Money and Assets

Another common myth about prenup agreements is that they will only protect the spouse with more wealth and assets. However, one-sided legal agreements are not relevant in a court proceeding.

If you are the spouse with less wealth or financial status, the prenup agreement can provide you with clarity. For example, you can set out your financial matters in the prenup to ensure clarity down the road as your marriage journey begins.

A good prenup agreement lawyer will ensure the agreement is fair and just for both parties involved.

FAQs

Is a prenup enforceable in Ontario?

The 1978 Family Law Reform Act authorized prenuptial agreements and marriage contracts in Ontario. Because of this, all prenuptial agreements are enforceable throughout Canada.

Can a prenup protect my house in Ontario?

A prenuptial agreement can help ensure that your assets, such as your home, remain yours in the event of a divorce. Keep in mind that this is applicable if you have a premarital home, as the matrimonial home is divided equally between both spouses.

Do prenuptial agreements hold up in court in Canada?

Yes, the prenuptial agreements will hold up in court unless there are specific circumstances where the judge decides to set aside the agreement. This usually happens if the court deems the agreement to be unfair.

What makes a prenup invalid in Ontario?

Grounds for a prenup becoming invalid in Ontario include the failure to disclose assets and liabilities, not understanding the contract and its consequences, or the agreement deviating from the laws of the region.

Final Thoughts

Life is uncertain, and marriages can end up in divorce. Because of this, it is crucial to protect yourself and ensure you don’t go through a messy divorce later on.

So, if you want to be practical and realistic, you can contact our prenup agreement lawyer in Ontario. We will draft a just and fair agreement for you and your spouse that will serve your marriage for a long time to come.