Marriage contracts (aka “prenups”) have long been a source of debate in our society. As family lawyers, we often hear that marriage contracts are unromantic because they require couples to consider the possibility of separation.
We get it. No couple plans on separating, and for many, the thought alone brings up difficult emotions. While it can be uncomfortable to imagine separation, having open and honest conversations about finances, property, and overall expectations for the marriage is an important part of building a healthy and strong foundation. Though raising these topics with your partner can be challenging, couples generally find that working through them together provides clarity and comfort.
When negotiating a marriage contract, a family lawyer can help you navigate these discussions while also explaining your rights and responsibilities to ensure that any agreement reflects your and your partner’s shared intentions in a way that is legally enforceable.
This article provides a comprehensive overview of marriage contracts, touching on their source in law and how couples can customize their contract in a way that works for them.
Key Legislation
In Ontario, marriage contracts are governed by section 52 of the Family Law Act, which establishes the parameters around what may and may not agree to in advance. See below:
Marriage contracts
52 (1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,
(a) ownership in or division of property;
(b) support obligations;
(c )the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and
(d) any other matter in the settlement of their affairs.
Rights re matrimonial home excepted
(2) A provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial Home) is unenforceable.
In other words, engaged or married couples can enter into a contract that sets out how they want to govern their affairs during the marriage and/or in the event of a separation.
A Highly Customizable Approach to Family Law
Marriage contracts allow couples to modify or even opt out of the provisions of the Family Law Act (and its regulations) based on what makes the most sense for their unique circumstances. In this way, marriage contracts are highly customizable. They allow couples to review their shared goals for their relationship and their individual lives and predetermine how those goals will take shape over the course of the marriage.
That said, opting out of the provisions of the Family Law Act is not without limits. There are several restrictions that couples must keep in mind when developing the terms of their marriage contract, including, but not limited to, the following:
- You cannot limit or negate a spouse’s right to possession of the matrimonial home. This must always be dealt with following separation, according to Part II of the Family Law Act; and
- You cannot set or predetermine parenting terms or schedules. Decision-making responsibility (formerly, “custody”) and parenting time (formerly, “access”) must always be dealt with following separation, pursuant to the best interests of the children, as described in the Divorce Act and Children’s Law Reform Act.
Concluding Thoughts
While opinions continue to change over time, marriage contracts are still treated as taboo because of prevailing attitudes that couples should not think about separation before it happens. However, a major contributor to the stress of separation/divorce is the unknown. The worry of not knowing what will happen to your money, property, and home can be overwhelming. So, it can take a very long time to finalize arrangements following the end of a relationship, which can further exacerbate the stress and difficulty of this experience.
Marriage contracts provide couples with a framework that best suits their collective and individual circumstances and allows them to tear away the mystery and uncertainty that naturally comes with separation and divorce.
There is a lot to think about when it comes to marriage contracts. That’s why it’s important to work with a family lawyer who can help you better understand your rights and obligations when negotiating and, eventually, signing a marriage contract. At Euroa Law Group LLP, we approach marriage contracts with care, transparency, and an appreciation for the highly personal nature of these agreements.
This article is solely intended to educate and inform; it does not constitute legal advice. If you are in need of legal advice, please contact Euroa Law Group LLP to set up a consult.
