Why you should consider a prenup (even if you will never get divorced!)

If you are married or thinking of getting married, a marriage contract or prenuptial agreement is an option to safeguard your wishes. Marriage contracts not only cover the division of property after a marriage ends due to divorce, as is commonly believed. They can also secure the validity of you and your spouse's Wills, and provide for division of property in the case of an annulment, which can happen even if parties do not believe in divorce. Finally, a marriage contract can provide for the education and moral upbringing of children, even after the death of one spouse, which is especially helpful where parties come from different cultural or religious backgrounds or hold different values going into a marriage. Marriage contracts have a much broader scope than is commonly known, and its powers may be of inestimable value to families in securing their right to self-determination and tailoring the law to their individual wishes.

Who can make a domestic contract, and when

A couple can draft a marriage contract to share their rights and obligations during their life together or upon separation, annulment or dissolution, or death of one spouse according to their own wishes at any time during or before their marriage. Additionally, they may choose to direct any actions regarding for example, property or the upbringing of children during the course of their marriage in this contract.

In the event of the death of one spouse, the Will of the deceased party need not legally be honored. A marriage contract can serve as a validation of the Will of each party, because according to the law, without a marriage contract, there is always the possibility that the surviving spouse can opt to, or may be pressured to inherit under the Family Law Act rather than under the Will of the deceased party and thereby fail to provide for the specific wishes of the deceased party.

In addition, in many cases, in the event that a married couple separates, often due to circumstances unanticipated during happier times, it is extremely helpful to have a marriage contract in place to facilitate the transition so that families do not have to deal with the added stress of dividing property during a time when tension might already be running high. Even if divorce is not an option, a marriage contract could be the perfect inanimate mediator to navigating difficult circumstances in the life of a family.

In many cases, division of family assets by the courts under the Family Law Act does not provide for the diversity and uniqueness of family situations in Ontario, since "the courts have only minimal discretion to order anything other than an equal division of family property" (LeVan v. LeVan, 2006 CanLII 31020 (ON SC), par. 258). Signing a marriage contract may be especially helpful, for example, in the event that there is great disparity between the property values of the spouses, or in the event that there is a business or other asset that both parties agree should be kept intact or safeguarded in some way.

A contract is also helpful in the case of persons who wish to provide for someone not related to them by blood or if one or both spouses have children from a previous marriage and wish for those children to be taken into account in the division of property upon the death or divorce of the spouse, which may not fall under the jurisdiction of the Family Law Act alone.

Domain of Domestic Contracts

In a domestic contract, the two parties may not only address their rights and obligations during their marriage, but, upon separation, divorce, annulment or death they may also draft terms regarding property rights, obligations to support one another or their children. Less known is the fact that a marriage contract can also provide for the education and moral training of their children or any other matter that assists the satisfactory settlement of their affairs.

If you have questions about domestic contracts or prenuptial agreements, call us at (647)-494-9599 or email us at info@law365.ca to speak to a lawyer.