A Primer on Pre-Nups
Ignoring the romantic pessimism that pre-nuptial agreements might signify, from a legal standpoint pre-nups have a useful purpose, especially in the modern-day, high divorce-rate Canadian society. Here are a few basic points to know:
What Are They?
In Ontario, pre-nuptial agreements are just one form of “domestic contract”, a term used in the Family Law Act to refer to contracts between various parties who are married, living together, contemplating marriage, and so on. A pre-nup (or as it is more properly referred to, a “marriage contract”) is an agreement made specifically between two people who intend to marry each other.
Are There Any Formalities?
In order to be valid, a pre-nup must be made in writing, must be signed by the parties, and must be witnessed. And – while it is not mandatory – it is always a good idea for each party to obtain independent legal advice prior to signing a pre-nuptial agreement (or ANY contract, for that matter).
What Can Be Covered?
Generally speaking, a valid pre-nuptial agreement can cover the parties’ respective rights and obligations arising in the event that they subsequently marry each other, as well as what happens in the event of separation or death. More specifically, however, the parties can agree on how to resolve future issues relating to:
• ownership or division of their property;
• support obligations;
• how their children will be educated; and
• other matters relating to the settlement of their affairs.
However, the Act expressly stipulates that a pre-nuptial agreement may not purport to dictate the right to custody of or access to any children of the marriage, and may not attempt to limit a spouse’s legislated rights in connection with the matrimonial home. Also, in law courts have discretion to disregard any provision in a pre-nup that is unreasonable when viewed against the Child Support Guidelines, as well as any provision relating to child support that is not in the child’s best interests.
Why Use Them?
Pre-nuptial agreements can be useful in virtually all scenarios: from those getting married for the first time, to those who have walked down the aisle on more than one occasion. They can solidify the parties’ mutual intention to preserve their respective financial independence despite their decision to marry each other. They can address unique situations, such as where one future spouse has an interest in a family business or stands to inherit a family fortune. Most importantly, pre-nuptial agreements can provide needed certainty and finality to the question of how the spouses’ financial affairs will be settled in the event that they later separate and divorce.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.