you need to know about a
Prenuptial Agreement in Canada.
A Prenuptial Agreement in Canada is a legally binding contract entered before marriage. In some provinces and territories, the term Prenuptial Agreement is commonly referred to as a domestic Contract or a Marriage Contract.
A Prenuptial Agreement in Canada is also referred to as antenuptial agreement or premarital agreement and is abbreviated as “prenup”.
If Couples sign a written contract before they get married then it is a prenuptial agreement and if they sign the written contract after they are married then it is a marriage contract.
Whereas, if a common-law couple enters into an agreement of similar nature it is referred to as a Cohabitation Agreement in Canada.
Therefore the difference between a Prenuptial Agreement and a Marriage Contract is the date when the agreement is being executed between spouses whereas a Prenuptial Agreement and a Cohabitation Agreement in Canada is differentiated by Type of Relationship.
In Canada, we do not have federal legislation dealing with marriage agreements or domestic contracts. Provinces and territories have enacted provincial laws to deal with the issue of marriage agreements and domestic contracts.
In this Article, we will specifically refer to a Prenuptial Agreement but the Legal Nature and effects of all domestic agreement and Marriage Contracts are similar, such as they seek to protect parties Assets, debts overflow, support, and children.
9 Tips you need to know
Tip 1. Talk about Finances.
It is important to talk about your finances prior to entering into a relationship as a married couple or as a common-law partner.
Although it could become extremely difficult to bring this topic it must be addressed. Couples moving in together or getting married could have serious financial implication at the time of Divorce or Separation. The purpose of a Prenuptial Agreement in Canada is to make sure both spouses are treated fairly.
Do remember that a Judge will take into consideration a Prenuptial Agreement at the time of making a decision on division of property and support.
Tip 2. What does a Prenuptial Agreement Contain or Cover or What is the purpose of a Prenuptial Agreement?
A Prenuptial Agreement in Canada will set what property or asset, debt each person is bringing into the marriage and shall specify the terms and conditions of the division of ownership of property, assets, debts as well as spousal support at the time of separation or divorce.
Some Prenuptial Agreement may deal with the issues relating to the children brought into the marriage.
The structure of Division of Property can be incorporated in the Divorce Order if it is stated in the Prenuptial Agreement.
The standard theme of the document is that the property and debt brought into the marriage by individuals remain their property or debt and any property, asset or debt acquired in individual names shall remain their own. However, one must speak to a Lawyer before signing a Prenuptial Agreement in Canada
Tip 3. Why do you wear a Seatbelts? It will protect you in an accident?
When you wear a seat belt you hope that your journey would be without any accidents but you still take precautions to protect yourself. Similarly, a Prenuptial agreement is an insurance for your marriage or common-law relationship.
In the unlikely event of a Divorce or a Separation, both parties can save hundreds of thousands of dollars in Legal Costs, emotional trauma and unfair treatment. The key purpose of a Prenuptial Agreement is set terms on how to split your assets, liabilities, and support in the event of separation or divorce.
Common Question we get is WHY DO I NEED A PRENUPTIAL AGREEMENT IN CANADA? One must consider if he/she is living as a Common-law Couple or planning to Get Married this could have serious legal implication affecting your finances.
Parties may want to make sure that they protect the property they own prior to marriage and after marriage.
WHAT IF YOU DO NOT HAVE ANY ASSETS OR LIABILITIES PRIOR TO MARRIAGE? DO YOU STILL NEED A PRENUPTIAL AGREEMENT IN CANADA? Let us presume that both of you as a couple do not have any assets or liabilities at the time of getting married or at the time of moving in together.
A thought may cross your mind that in such a situation it would not be worth spending hundreds of dollars in Lawyer’s Fees. Cost of a Prenuptial Agreement, range from $499 to $1,000 +HST, whereas the cost of litigation would range between $10,000.00 to $90,000.00 + HST.
On the other hand, you may not have any debts prior to marriage but during the course of a marriage, you could acquire debt resulting in serious legal and financial consequences if you separated or divorce.
then it would be wise to enter into a marriage contract to ensure that in the unlikely event of break up of marriage you are protected and your assets are protected.
Therefore it is always important to have a Prenuptial Agreement. A good prenuptial agreement Lawyer will always advise couples to have a Prenuptial Agreement in Canada. Also, read Tip 8.
Tip 4. Full and Frank Financial Disclosure. Make a List of Assets and Liabilities and exchange Income information.
When couples are dating they are not thinking about the realities of life when they move in together. It is crucial to make a list of assets and liabilities each partner is bringing into to marriage. This will ensure that both parties have made a full and frank financial disclosure to each other prior to the commencement of their relationship.
Couples should talk about their arrangements with respect to property or asset acquired in individual names as well as any debt incurred in individual names. The rule of thumb is that any property owned in individual’s name remains his/her unless a property is jointly purchased and vice versa for Debt.
Tip 5. Are you Planning to Leave your Job for Marriage? Talk About Spousal Support
It is possible that you may be moving cities, provinces or counties to start a new life. You may have a well-established career ahead of your but since you are in love you are willing to give up your career. It is important that you talk about Spousal Support in the event of marriage break down. A prenuptial Agreement should contain provisions to protect you if you gave up your job and career for marriage.
Tip 6. What about Children
If you have children from the previous relationship then you must address these issues in a Prenuptial Agreement. You want to make sure that the issue of custody is spelled out clear ink. Once the issue to custody is addressed, you want to make sure that the issue of child support is also taken care of in the Prenuptial Agreement.
Tip 7. Speak to a Lawyer
It would be wise to speak to a Prenuptial Agreement Lawyer when thinking to draw up your agreement. You can use an online template but each party would still need to get an Independent Legal Advice (ILA) Certificate from a Lawyer. Couples should get an Independent Legal Advice because you do want a situation where the Judge invalidates the Prenuptial Agreement in Canada.
Your Prenuptial Agreement Lawyers will also help you understand different issues and give you the correct advice on certain situations which online templates cannot do. Only having one lawyer to do the whole agreement for you both is possible but the other party must obtain Independent legal Advice (ILA) otherwise it would be a conflict of interests.
Having lawyers can strengthen the agreement as a legal protocol has been followed. A lawyer will ensure that your Prenuptial Agreement has complied with all the Legal Requirements under the Family Laws.
One party could claim that they did not know what they were signing, which would make it non-binding, whereas lawyers will make sure that the contract is indisputable.
Whilst everyone should enter a marriage feeling like it will last forever, it is only reasonable that each party protect their assets in case things do go wrong later down the line. Shaikh Law Firm has branches across Greater Toronto Area (GTA), you can find an experienced Prenuptial Lawyer in Toronto downtown, Prenuptial Lawyer in Mississauga Square One, Mississauga on Derry and Hurontario and Mississauga Streetsville, Prenuptial Lawyer in Brampton, Oakville & Hamilton. To find a Prenuptial Lawyer near your please visit our Contact us page
Tip 8. Not Just for the Well-to-do
We often think that prenuptial agreements are to protect the wealthy, but it can work both ways. If you consider yourself at risk financially such as incurring unknown and unnecessary debt, then a Prenuptial Agreement can protect you in the event of separation or divorce.
One of you may give up your career to take care of children and become a stay at home parent. If so it is likely that person is not developing new skills for a job, so the prenuptial agreement could give that partner protection so they will receive a fair settlement for making that offering.
People often believe prenuptial agreements are about protecting assets and property, but they can also cover debts that are brought into the marriage or that you obtain during your marriage. One of you may be entering the marriage with significant debt. If you separated, then this debt would be halved, just like anything else if you don’t have a prenuptial agreement. You can disclose that any debt brought into the marriage before will not be transferred to other partner and will stay as their debt when drawing up these agreements.
Another example would be if one of you was expecting to receive some inheritance during the marriage. You may not wish to share that with your partner. You can protect that with the contract to ensure it stays as yours rather than being shared, but you would need to make sure you keep the inheritance separate from anything communal.
Pensions can be a large asset in a prenuptial agreement and need to be discussed. You will be asked to sign a record that says you are waiving your right to any retirement investment in the event of a divorce. This may be separate to your agreement but will be attached to the document and will be released to everyone involved in the pensions, such as employers and pensions plan administrators on this notice.
Tip 9. Courts can Set-aside a Prenuptial Agreement in Canada
Yes, any domestic Agreement, including a Prenuptial Agreement, or a Marriage Contract or a Cohabitation Agreement Canada can be set aside by a Judge if the Judge finds the following evidence and it is established in Trial.
- Duress: If one of the spouses were forced to sign the agreement and it was not a voluntary signature.
- Material Misrepresentation: If one of the Spouses have not disclosure full and frank financial disclosure.
- Unconscionable: The terms of the Agreement are hard, unfair, and unjust that it will not hold fair in Court.
- Undue Influence: if one of the parties hold an influencing position to force the other to sign the contract.
One must note that it would be difficult to overrule a Prenuptial Agreement if the parties have obtained Independent Legal Advice (ILA) and have attached full financial disclosure.