Prenuptial Agreements in Canada
Signing a prenuptial agreement can save you a lot of time and headaches. A prenuptial agreement allows you to negotiate what happens in the event of a marriage breakdown. They are also known as marriage contracts.
They are especially useful for helping you protect property that you bring to the marriage, such as a business or intellectual property that you own. They’re all but vital for farmers, who can see their farms utterly destroyed or taken away from them during a divorce. It is also a useful estate planning tool, as some marriage contracts also outline what happens in the event that your spouse dies.
Here’s what you need to know.
How does a prenuptial agreement work?
A prenuptial agreement helps to protect you by outlining exactly what assets and debts each party is bringing into the marriage, and helps prevent arguments about that property later. It also can keep you from having to pay an inordinate amount of spousal support later, as the support amount and the length of time that it will be paid will already be outlined.
The prenuptial agreement also divides up the marital assets.
For the most parts, these have to be fair, which means they have to be in accordance with Canadian law. By law, both spouses do have a 50% right to any property acquired after the marriage, or marital property. Yet a prenuptial agreement can help that division go smoothly and swiftly. It allows you to protect the part of the property you really care about long before a marriage is terminated.
Marriage isn’t just a matter of romance. It creates an economic partnership. A prenuptial agreement essentially decides, in advance, what happens if that partnership dissolves.
What should a prenuptial agreement contain?
A fair prenuptial agreement safeguards the pre-marital assets of both partners. It should include:
- A disclosure of all assets and debts.
- An outline of which non-marital assets are to be protected.
- A plan for dividing marital assets and an outline of what will count as a marital asset.
- Terms that should be upheld during the marriage. For example if one partner is wealthy and working while the other is to be a homemaker, you can negotiate an annual anniversary gift, an annual contribution to an IRA, a life insurance policy, or a monthly mandatory contribution to a joint account. In this way you can provide for your future support even if the agreement closes the door on spousal support.
- However, in many cases it is wise to make some provision for spousal support.
A prenuptial agreement should not include provisions for parenting orders, and it should not include child support. You should also avoid clauses which attempt to control your spouse’s behavior, as these are unenforceable. You can’t add clauses about chastity, weight, or clauses which prevent a spouse from working or owning a business.
Can a prenuptial agreement be revoked?
There are in fact many instances where judges have revoked prenuptial agreements. This happens when:
- The prenuptial is clearly unfair and heavily favors one party over the other.
- Each party was not represented by their own attorney at the time that the prenuptial agreement was signed.
- The prenuptial agreement is full of unenforceable provisions.
- One party hid assets or debts from the other.
- The marriage contract was improperly witnessed or is otherwise legally invalid.
- The prenuptial agreement was signed under duress.
- The terms of the prenuptial agreement no longer apply.
To safeguard against having a judge overturn your marriage contract, you should:
- Work with an attorney, and make sure your spouse has one as well.
- Fully disclose all assets and debts.
- Avoid unenforceable clauses.
- Lovingly and fairly consider your spouse’s future in the event that the marriage dissolves, and make provisions for their care, especially if one of them is to be a homemaker.
- Ensure the contract is signed six to nine months prior to the wedding. Asking your spouse to sign a contract very close to the wedding is often seen as a sign of coercion.
- Revisit your prenup every three to five years to make sure it is as up-to-date as possible.
Who should consider a prenuptial agreement?
The idea that prenuptial agreements are only for the extremely rich is a misnomer. Anyone can benefit from a prenuptial.
You should be especially vigilant about signing one if:
- You own a business.
- You own more than $100,000 of assets prior to getting married.
- You are bringing a retirement account into the marriage.
- You own intellectual property.
- This is your second marriage, especially if you have children from the marriage.
- Your spouse is bringing significant debts into the marriage that you don’t want to end up taking on if the marriage dissolves.
- You own a farm.
- You have inherited property.
- You plan on being a stay-at-home parent.
In truth, almost any person can benefit from signing a marital contract in advance.
What is a postnuptial agreement?
You can sign a marriage contract after the wedding, too. When this happens it is known as a “postnuptial.”
A marriage contract functions regardless of when it is signed. If you realize you have walked into your marriage without a marriage contract then sit down and have a frank discussion with your spouse. Explain that you have no intention of divorcing them, but life is unpredictable and you want to see to it that both of you are protected. Explain the role a marriage contract can play in estate planning, as well.
Get Help Today
Marriage contracts shouldn’t kill the romance. Instead, you and your partner should think of them as ways to protect one another. This holds true whether you are already married, or whether you are entering a marriage.
We have helped thousands of Canadians negotiate fair marriage contracts that give them financial peace-of-mind.
We help clients in British Columbia, Alberta, Saskatchewan, and Manitoba. We’re known for being some of Canada’s savviest negotiators and toughest litigators.
Contact Merchant Law to get started today. We’re ready to help.