preload

Marriage Contracts / Prenups

What is marriage contract or prenup agreement?

A marriage contract is also called prenuptial or postnuptial agreement. It is a domestic contract or agreement entered into prior to a marriage/relationship breakdown. Marriage contracts are used to pre-decide certain rights and responsibilities in the event of a marriage breakdown. They set out a mutual understanding, based on the information currently available, of how you will divide your property or address spousal support in the event of a marriage breakdown. This article provides a complete overview of marriage contract agreement and how it can be challenged.

What is included in marriage contract?

Marriage contracts should be accompanied by full financial disclosure. Marriage contracts that are not accompanied by full financial disclosure may encounter enforceability issues. Similarly, if an agreement is not reasonable, or was not negotiated fairly, it may not be enforceable. That is why it is important that you seek the advice of a family law lawyer when contemplating drafting a marriage contract.

What cannot be addressed in a marriage contract or prenuptial agreement?

There are many issues that if addressed in a marriage contract are unenforceable, such as waivers of child support, custody, access, and parenting decisions, and in certain circumstances, spousal support waivers.

Can marriage contracts or prenuptial agreements be challenged?

A party to a marriage contract can challenge the validity/enforceability of the marriage contract upon separation. If the validity of a marriage contract is challenged, you will have to show that the contract is valid and should be enforced. It will be necessary to demonstrate that:

  1. you provided full financial disclosure prior to entering into the marriage contract;
  2. both parties had independent legal advice or were provided the opportunity to seek independent legal advice;
  3. the party challenging the validity of the agreement was not under any duress or pressure to sign the agreement; and
  4. the marriage contract is generally fair and complies with the objectives of the Divorce Act.

To increase the likelihood that a marriage contract will be enforced, it is important that the parties negotiate the agreement in a manner that demonstrates that the agreement and process was fair to the parties. It is critical that you seek legal advice from a knowledgeable family law lawyer early in the process.