Prenup Lawyer Serving Toronto and North York

What is a marriage prenup?

According to the Family Law Act, Marriage Contract/Agreement is a legally binding agreement between two persons who are either married to each other or intend on marrying each other. In a marriage agreement, the parties set out the terms they will be following during their marriage and/or at the time of their separation, or the death of a spouse.

What can be included in a marriage prenup?

Although a marriage contract/agreement is drafted according to the specific needs of the spouses involved, it can include terms regarding:

• Division of property;
• Spousal support and/or child support obligations;
• Children’s educational and moral training rights (if it is in the best interest of the children); and
• Other issues relevant to the spouses.

A marriage contract cannot include decision-making responsibility and parenting time terms for the children, and/or any term that might affect the spouses’ right on the Matrimonial home. 

When is a marriage prenup valid under the Family Law Act? 

A marriage contract is valid when:

• Both the spouses have disclosed details of all assets and liabilities in their respective names at the time of the signing of the marriage agreement;
• Both the signatories are able to interpret the terms of the contracts and understand the consequences of signing it; and
• It is in harmony with the law of contract.

If one spouse does not comply with these requirements, the other spouse can bring a motion to get the marriage agreement set aside. However, in the case of LeVan v. LeVan a violation of these requirements would not render the contract/agreement automatically invalid, rather it is the discretion of the court. There are several factors taken into consideration while deciding whether the marriage agreement should be set aside or not. For instance, in the case of T.O. v. D.O., even after assuming that there was an imperfect or an incomplete financial disclosure by the husband, the court refused to consider setting aside considering the following issues:

• Whether the funds in question existed at the time of the marriage contract’s signing?
• Whether the other wife refrained from or neglected inquiring about further financial disclosure of the husband?
• Whether the husband concealed or misrepresented any information?
• Were there was any duress or unconscionable circumstances?
• How relevant and important was the non-disclosed information to the negotiations of the marriage contract?
• Would the terms agreed upon have been any different had there been a complete disclosure of information?
• Are the terms agreed upon just and reasonable?
• Whether there was expeditiousness in requesting the setting aside of the marriage contract in question?

Can a marriage prenup be amended?

Although a marriage contract is fixed and binding if it is valid and is signed by both spouses, this contract can be amended with the consent of both the parties. The parties might even agree on forming a new contract altogether with new terms. However, if one party does not consent to changing the marriage contract, the other spouse can bring a motion to amend the said agreement if there has been a material change in the circumstances since the agreement was signed.

It is in the best interest of the parties to engage a lawyer independent from their spouse to draft a marriage agreement according to their specific needs, and explain the consequences of signing it to them.