What Is A Marriage Contract?

Marriage contracts are also known colloquially in the general community as pre-nuptial agreements or prenups. Marriage contracts in Ontario are often negotiated and put into place before marriage, but can also be finalized after the marriage has already taken place. In fact, if your circumstances change at any time during your marriage, it may be a good idea to review any existing marriage contract to consider if more reasonable, up-dated terms are warranted.
Marriage contracts are domestic contracts that can be customized to suit the parties’ needs to ensure that the rights, responsibilities and obligations of each party are known and protected to the greatest extent possible, in the event of a breakdown of the marriage in the future.

At Holam Law PC, we strive to work with our clients to craft marriage contracts that are best suited to their financial needs. We provide legal advice to best achieve a client’s goals. The terms of the agreement can be tailored to address the specific needs of the client, and can include clauses in relation to spousal support, exclusion of specific property and assets, and/or inclusion of same in relation to property division at separation, to ensure that each spouse’s expectations of the other are clearly delineated from the outset

Why Have a Marriage Contract?

Having a binding and enforceable marriage contract is akin to having vehicle insurance. Just like car insurance may protect you in the event of an accident, a marriage contract may protect or limit your financial risk or liability upon separation. This is because a marriage contract generally sets out each party’s rights and obligations, such as how assets are to be divided, etc., in the event of a breakdown of your marriage. Moreover, a well crafted marriage contract is more likely to be held up by an Ontario Court if challenged by a spouse. Separation is difficult enough, so setting up the process in advance to manage the financial aspects can significantly reduce stress during an already emotional time.

That’s why it is so important that marriage contracts be negotiated with the assistance of, drafted by, and then carefully reviewed by a family law lawyer who has expertise in this area. The team at Holam Law PC has the necessary experience and knowledge to help you achieve your goals in this regard.  

What to put in a marriage contract?

Terms that can be included in a marriage contract are as follows:

  • Limitations on and/or waivers of spousal support
  • Exclusion of assets from the division of net family property, i.e. equalization
  • How assets will be divided if there is a breakdown of the marriage, i.e. separation
  • How finances will be managed during the marriage or after separation
  • Protection of any substantial gifts, inheritances or trusts

Limitations of a Marriage Contract

It is important to note that while marriage contracts can be put in place to protect financial considerations, these agreements cannot include any terms in relation to the custody of and access to any child of the marriage in the event of a separation. Further, a marriage contract cannot limit the rights of a spouse to how they live in the matrimonial home. These issues are resolved only after a breakdown of the marriage has already taken place.

What Makes a Marriage Contract Legally Binding?

Creating a legally binding marriage contract will require both parties (spouses) to be honest and open about their financial circumstances. Detailed disclosure of all assets, as well as debts and liabilities, are required to be made under Ontario family law and legislation. The process by which full financial disclosure is made can be complicated. However, our team at Holam Law PC is well-equipped with the knowledge and technical skill to assist with this process.
In addition to the provision of full financial disclosure, another hallmark of a legally binding and enforceable marriage contract is independent legal advice. This will ensure that you understand your individual rights and obligations under the agreement, so that you can enter it voluntarily and fully informed. It is therefore important for you and your spouse to choose your own individual lawyer who will advocate for you alone to best achieve the intended results. This will also help to create a more balanced marriage contract.
The marriage contract must also be in writing and duly signed by both parties in the presence of credible witnesses.

Generally, when all the hallmarks of a binding and enforceable marriage contract have been met, the Ontario courts have upheld marriage contracts. It is for these same reasons that a one-sided marriage contract should be avoided. Often, marriage contracts with unreasonable terms or where a party did not feel fully informed prior to entering into it, leads to resentment and negative relationship undertones. Moreover, a one-sided marriage contract will likely result in a spouse challenging in court the terms of the agreement following a breakdown of the marriage. Escalation of the dispute in ligitation is something that many may otherwise want to avoid. Most importantly, marriage contracts lacking the hallmarks noted above are unlikely to be upheld in an Ontario court. If a marriage contract or any part of it is set aside by the Court, the impugned provisions must be decided anew.

We Will Help with Your Marriage Contract

Our family lawyers have extensive experience working with clients to negotiate and craft marriage contracts best suited to their needs. We customize these contracts based on our client’s wishes and requirements. At Holam Law PC, we provide a comprehensive service to our clients from the outset, by determing their needs, compiling their disclosure to conform with the legal requirements, negotiating the terms of the marriage contract, and then drafting the document once the terms are agreed upon. Knowing our clients well helps us ensure that their legal needs are met.

If you are in the process discussing with your future spouse a marriage contract or are considering one, now would be a great time to contact us. Consulting professionals like us is far better than using an online divorce spousal support calculator.

Call us at 365-608-6161 or email us at info@holamlaw.com to schedule a consultation today.