What are Prenuptial Agreements, Really?

If you plan on getting married in the near future, the thought of a prenuptial agreement has probably crossed your mind. In fact, more and more people are getting these agreements with their fiance or spouse. But what are these agreements and how can they help you? We asked the family lawyers of MM Law for some answers to this question and others.

What is a prenup?

A prenuptial agreement, also called a prenup, is a contract of agreements and rules for the marriage and its potential end. Canadians also call prenups by other names, domestic contracts and marriage contracts. Whatever you prefer to call them, these agreements keep family lawyers busy but provide better clarity to marrying and divorcing couples.

An alternative to a prenuptial agreement is a cohabitation agreement. This is for people considering living together, but not necessarily getting married. Later, if they choose to wed, a cohabitation contract can evolve into a prenup.

According to the Family Law Act Section 52, a prenuptial agreement applies to two individuals who are already wed or plan to get married. This agreement specifies respective rights and obligations for married life, separation, annulment, divorce or death.

Issues commonly dealt with as part of a prenup include:

  • Property ownership or division
  • Obligations for financial support
  • Parenting of children
  • Other matters of spouses’ affairs

To be enforceable, a prenup must be valid under Canadian law. But these documents do not enforce custody or visitation of minor children. The document does not limit rights of possession of the marital home, either. Those are matters decided through family lawyers and in family court.

How a Prenuptial Agreement Benefits a Marriage

Prenups are a type of marriage contract made before getting married. These agreements are growing in popularity among spouses who enter into marriage with their own independent wealth, property or assets.

Although prenups are typically instruments used by celebrities or the wealthy, anyone can enter into one of these legal contracts. You simply need a good lawyer specializing in family law to write an agreement applicable to your situation and that of your soon-to-be spouse.

These agreements make life easier during separation and divorce. They also help you fairly dissolve your marriage if one of the spouses commits adultery. Because the terms of the dissolution are clearly specified before going into marriage or before those events occur, all parties are pre-informed of these actions’ legal consequences.

Through a prenup, you can protect the assets and property you have before your marriage, as well as the wealth you build after saying, “I do.”

Can a Judge Overturn a Prenuptial Agreement?

According to Section 56(4) of Canada’s Family Law Act, courts have multiple grounds for setting aside parts of a prenup or the contract in full. These grounds include:

  • Non-disclosure of substantial assets, debts or liabilities when the contract is signed
  • Failure of one of the parties to understand the document
  • According to other law of contracts

The law applies the “doctrine of unconscionability” to a domestic contract, specifically examining the circumstances in which it was executed. This means that with good cause and according to the above-listed reasons, a judge can overthrow parts or all of your prenuptial agreement.

However, you should never sign one of the documents under the belief that it may be overturned. Instead, talk to an experienced family law expert before agreeing to a marital contract. Fighting your prenup can be a costly and time-consuming process, whereas having an attorney write a sound document that protects you takes far less time.


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