Family Law
Marriage Contracts
Family Law
Marriage Contracts
Each spouse will have certain legal rights and responsibilities upon marriage. However, setting things down in a domestic contract will clarify matters legally in case of a divorce or separation later. More and more Canadians are opting to sign a marriage contract to safeguard their assets before or during their marriage. It’s always prudent to safeguard your assets, no matter how stable your relationship is currently. A family lawyer can help you draft such a document that will be legally binding and enforceable by law if needed.
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What is a marriage contract?
A marriage contract is a domestic contract that you enter into voluntarily leading up to or even after your marriage. Both the prenuptial and postnuptial agreements will come under this category. The marriage contract allows the couple to set out various terms and conditions concerning different aspects of their financial and personal rights and responsibilities toward each other when the relationship is in a healthy state. Having an agreement in place will protect the interests of both parties in advance, and it will also make the process of separation simpler if it ever comes to that.
What does a marriage contract typically include?
In a marriage contract, the couple will try to address most of the issues that would generally come up during a divorce or separation. However, the marriage contract cannot predetermine the resolution of many issues during separation or divorce. Obviously, the circumstances at the time of separation or divorce will determine them, such as the decisions regarding the children. But there can be an agreement on the following points:
- Spousal support: In the event of a divorce or separation, the spousal support amount shall be determined based on the income of both parties and as per the Spousal Support Advisory Guidelines. However, the parties can set their expectations regarding spousal support on paper, including their decision to reject it altogether.
- Division of property: Keep in mind that the marriage contract cannot predetermine who will possess the matrimonial home. Even if it is mentioned, it will not be enforceable under the law. Other than the matrimonial home, it is advisable for the couple to set out a clear division of property ownership and finances in the marriage contract, which will make things easier to resolve in the event of a separation or divorce.
What does a marriage contract typically exclude?
The marriage contract cannot predetermine the majority of matters that affect children. Even if the contract mentions it, it will still not be legally enforceable. This is because, as per Canadian law, such decisions are to be taken solely in the child’s best interests, regardless of what is mentioned in the marriage contract. The following items are generally excluded from marriage contracts.
- Child Support: Marriage contracts are typically drawn up before couples have children together. The circumstances regarding the children and what is best for them cannot be known at that time. Also, as per Canadian law, the parents are obligated to pay for the living and educational expenses of the child at least until the child turns 18 or even longer, in some cases. It is not possible for any parent to set aside or reduce this obligation beforehand in the marriage contract. In the event of a divorce or separation, the court will decide the child support based on the prevailing circumstances of the couple following the Federal Child Support Guidelines.
- Decision-making responsibility and parenting time: Again, the decision-making responsibility regarding the child and parental access cannot be predetermined in the marriage contract. As per the Divorce Act, these decisions are to be taken solely based on what is best for the child.
- Matrimonial home: The marriage contract cannot predetermine who will possess the matrimonial home. Under Canadian law, both parties have equal ownership over the home, regardless of who paid for it. In the event of a separation or divorce, one of the spouses can be forced to vacate the house based on a court order or a signed legal separation agreement.
How can a family lawyer help you?
A family lawyer can assist the couple entering into the marriage contract by:
- Providing them with legal guidance: Your family lawyer will guide the couple in making sure that they understand the rights and obligations outlined in the contract and that it becomes an enforceable legal document once it is signed and witnessed.
- Customizing the agreement as per the couple’s requirements.
- Ensuring legal compliance: A family lawyer will ensure that the agreement meets the requirements of the federal and provincial family laws and guidelines and remains a legally valid document as well as ensuring that full financial disclosure is provided in the negotiation process as that is one way to have such an agreement set aside, lack of or improper financial disclosure.
- Negotiations and modifications: A family lawyer will mediate between the couple to ensure that they reach an agreement that protects both their interests and is acceptable to both. If any modifications are required in the future, you can again approach a family lawyer to amend or revoke the marriage contract.
Frequently Asked Questions
When should I enter into a marriage contract?
You may enter into a marriage contract either before (prenuptial agreement) or after (postnuptial agreement) your marriage. It is in the couple’s best interests to enter into an agreement before marriage to avoid potential conflicts in the future.
Is it possible to revoke or make changes to the marriage contract?
Yes. If they are both in agreement and do it legally in writing, the couple may choose to amend parts of the marriage contract or revoke it altogether.
What happens when there is no marriage contract?
A marriage contract will protect the financial interests of the parties in the relationship, especially when there is a huge disparity in wealth between them. Following the federal and provincial family laws, the court might split the property equally if there is no contract. This might seem unfair or unjust, at least to one of the parties. Therefore, a marriage contract is advisable to safeguard your interests.
We can Help
If you are planning to finalize your prenuptial or postnuptial agreement, contact our legal team for assistance. Our experienced family lawyers can help ensure that your interests and rights are protected and that the agreement is legally valid and enforceable. Contact our legal team today for a consultation.
