Today I’d like to discuss marriage contracts and prenuptial agreements.

In Ontario the legal term for an agreement contemplating a marriage and the possible breakdown thereof is “marriage contract.” As marriage contracts are often referred to as “prenuptial agreements,” the term more commonly used in the U.S., I will use the two terms interchangeably here.

Historically speaking, in common law it was once thought that public policy would be offended by marriage contracts that undermined the institution of marriage by providing for a possible separation. Marriage contracts and prenuptial agreements were accordingly void and unenforceable.

However, social values had changed by 1978 and during that year the legislature legalized marriage contracts by passing the Family Law Reform Act.*

The present governing provision on marriage contracts is section 52 of the Family Law Act, which is reproduced below:

52. (1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

(d) any other matter in the settlement of their affairs.

The authors of Domestic Contracts^ provided the following non-exhaustive list of factors that should be considered when drafting a marriage contract:

BACKGROUND
1. Name of each after marriage.
2. Disclosure of all significant income, assets and liabilities.
3. Description of marital status, current children.
4. Reasons for contract.
5. Special considerations.
6. Whether children contemplated.
7. Value of “Net Family Property” on marriage.

PROPERTY
8. What property will be exclusively owned?
9. What property will have shared ownership?
10. How will ownership be established?
11. How will shared property be divided on termination of marriage?
12. Will business interests be treated specially?
13. Will one spouse have the right to make any claim against the property of the other?
14. How will expenses be shared for it?
15. Who will own it?
16. Can one “buy into” it if other owns it?
17. What happens to home on termination of marriage?
18. Will there be buy out provisions on termination?
19. If it is solely owned do you wish the right of the non-owner to be diminished or eliminated?

DEBTS
20. Which debts are to be mutual?
21. Which debts are to be sole?
22. Special provisions for guarantees.
23. How are debts divided on termination of the marriage?

CHILDREN (IF ANY)
24. Are there to be clauses about their upbringing?
25. What name on birth?
26. Is there to be the right to change child’s name?
27. Obligations to support during cohabitation.
28. Formula for support on separation.
29. Restrictions on permanent removal from place of residence if separation occurs.

SPOUSAL SUPPORT
30. Are there any circumstances when there shall be none?
31. Are there any circumstances in which there will be support payable
32. If support is to be payable, are there terms to limit duration and amount?
33. Will support automatically vary with the cost of living?

Of course, the factors above are not meant to be “one size fits all.” When you’re contemplating entering into a marriage contract, it’s important to consult a lawyer so that your interests are adequately protected.

If you require assistance drafting a prenuptial agreement or a marriage contract, please contact our office at 416-433-5531.

* This act has since been repealed.

#R.S.O. 1990, c. F3.

^ Hugh G. Stark & Kirstie J. MacLise, Domestic Contracts: Comprehensive Guide to Marriage, Cohabitation and Separation Agreements in British Columbia and Ontario, looseleaf (Toronto : Carswell, 1986-2003) at 274.

Please Note: This article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. Legislation referred to may have been amended or repealed since the publication of the article.