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A prenup, or prenuptial agreement, is a contract that two people will enter into before marriage, which sets out the rules about their marriage and what will happen in the event of a relationship breakdown. In Canada, these types of agreements are more commonly referred to as domestic contracts or marriage contracts.
Under the Family Law Act in Ontario, a domestic contract is a catch-all phrase that can refer to a number of different types of agreements, such as a marriage contract, a cohabitation agreement or a separation agreement.
A marriage contract, on the other hand, is specifically defined in section 52(1) of the Family Law Act. It is an agreement entered into by two people who are married to each other or intend to marry and which sets out their rights and obligations during the marriage or on separation, annulment or death including property ownership or division, support obligations, the education and moral training of the children or any other matter that they choose to include. The only thing that cannot be stipulated in a marriage contract is the right to child custody or access. In addition, if a marriage contract limits a spouse rights regarding the matrimonial home, that provision will not be enforceable.
Many people tend to associate prenuptial agreements with celebrity marriages, as they are popular among spouses with substantial assets or family fortunes that they wish to protect. And many people think that having a prenuptial agreement is a precursor for divorce because they contemplate the end of the marriage. But marriage contracts are not only for the rich and famous and they can be useful for couples from all different socio-economic and cultural backgrounds.
Marriage is a partnership, and anyone entering into a partnership should understand the terms and expectations of the relationship and take steps to protect their rights. To some people it might sound like a sure-fire way to kill the romance, but the unfortunate truth is that many marriages do end in divorce these days. Having an agreed-upon contingency plan is never a bad idea. Many time-consuming and expensive court battles could have been avoided if the spouses couple had sat down and drafted a proper marriage contract at the start of the relationship, when they still loved each other.
If you have questions about prenuptial agreements or marriage contracts, please contact experienced family lawyer Jason P. Howie, online or at 519.973.1500.
