What Is A Pre-Nuptial Agreement?
A prenuptial agreement (often called a “prenup” or marriage contract) is a written contract signed by two people before they get married. In Ontario, these agreements are governed by Part IV of the Family Law Act. A prenuptial agreement typically outlines how property, assets, and debts will be divided in the event of a divorce or separation. It can also address spousal support and other financial issues.
The idea is straightforward: spouses can plan ahead instead of relying solely on the default rules of the Family Law Act. But the key question is, are prenuptial agreements (prenups) legally enforceable?
Are Prenups Recognized In Ontario?
Yes. Section 52 of the Family Law Act explicitly allows spouses (or those intending to marry) to enter a domestic contract, including a marriage contract. Ontario courts will generally uphold prenups if they were properly executed and are not grossly unfair.
What Makes A Prenup Enforceable?
To be enforceable, a pre-nuptial agreement must meet certain requirements:
- Written and signed: It must be in writing and signed by both parties in the presence of a witness.
- Full financial disclosure: Each party must be transparent about their assets, debts, and income. Hidden or undisclosed assets can lead to the contract being set aside.
- Independent legal advice (ILA): While not strictly required by law, courts strongly favour prenups where each spouse had independent legal advice. Without ILA, one spouse may later argue they didn’t understand their rights.
- Fairness and voluntariness: The agreement must be entered into freely and voluntarily, without duress, coercion, or exploitation.
Limits Of A Prenup
While prenups are powerful tools, they are not absolute. Under the Family Law Act:
- A prenup cannot deal with decision-making responsibility or parenting time, as these are always determined in the best interests of the child.
- Child support – a prenup cannot waive or limit it below the Guidelines; the court always has the final say.
- Spousal support – a prenup can address it, but courts can override unfair or outdated terms.
- Courts may set aside a prenup (or parts of it) if it is unconscionable, if there was a failure to disclose assets, or if a spouse did not understand the consequences.
Why Consider A Prenup?
- To protect pre-marriage assets, such as a home, investments, or business interests.
- To clarify property division in the event of separation or divorce.
- To reduce uncertainty, conflict, and costly litigation.
- To protect inheritance or family property intended to stay within one family.
Our Skilled Lawyers Can Help You
At Ayaz Mehdi Professional Corporation, we have extensive experience drafting and reviewing marriage contracts that hold up in court. We ensure that agreements meet legal requirements, reflect your intentions, and protect your interests. Whether you are planning a marriage, already married, or facing separation, our family law team can guide you on your options.
Disclaimer: Kindly note that sending or receiving information through this site does not establish a solicitor-client relationship. Legal matters are fact-specific, and the law is variably changing. The views expressed and the content provided on this blog are general guidelines and cannot substitute for proper legal advice. Schedule your legal consultation by clicking here: Let’s meet!
