Marry knowing that it is for love and not for money. This pre-nuptial agreement (also known as a pre-marital agreement) allows you to plan how you would divide your current and future wealth between yourself and your partner should you decide to divorce or separate in the future. It will help you control your ownership of important assets such as your house, sentimental possessions or business.
About this pre-nuptial agreement
This prenuptial agreement is suitable for couples about to marry or enter into a civil partnership: something which nobody does expecting it to end. However, many relationships change over time, and circumstances arise that no-one can foresee.
A pre-marital agreement sets out how your assets will be divided if you later decide to separate. If you don't divorce or separate, then you will never use it, but if you do, then having made a plan in advance should help you avoid expensive divorce settlements, help you keep items of sentimental value such as family heirlooms or property, and help you to control who inherits your wealth.
Why use this pre-nuptial agreement
This agreement is designed to:
- provide security during and after marriage to both partners
- avoid future disputes over how assets should be split and the contributions made by each person during the marriage
- help speed up the divorce process and save divorce costs
- ensure that items with sentimental value remain with the person to whom they matter most
- allow you to choose which people inherit your wealth (such as children from earlier relationships)
- prevent your wealth from being gifted away shortly before break-up
- protect business assets from being split and sold
- make separation less emotionally stressful by reducing the need to negotiate
Is a pre-nuptial agreement legally binding?
Pre-nuptial agreements are legally binding and enforceable in Canada. Divorcing couples must adhere to their pre-nuptial agreements unless the contracts are blatantly unfair. The Family Law Act provides that a court may set aside a provision for support or a waiver of the right to support in a contract and may order or deny such support if:
- the provision for support or the waiver of the right to support results in unconscionable circumstances
- the provision for support is in favor of, or the waiver is by or on behalf of, a dependant who qualifies for allowance for support out of public money
- there is default in the payment of support under the contract or agreement at the time the application is made
To be legally binding, the agreement must be signed by both parties in the presence of a witness.
The Net Lawman pre-marital agreement has been designed to have the best chance of being upheld if you do separate or divorce. It is restricted to financial matters only, since agreements limited to finances tend to be upheld more often than ones that consider a wider range of matters. Childcare in particular has been left out - since circumstances at divorce can be very different to those at marriage and judges will want to make their own decisions based on current circumstances.
A pre-marital agreement is not intended to cover how the couple should live together during married life (for example by stating how much time the couple should spend together, expected behaviour or apportionment of domestic duties). It deals only with what happens in the event of separation. Breaking a pre-marital agreement is not a valid ground for divorce.
This agreement covers the following:
- the parties’ personal details
- payment of shared household expenses
- joint bank accounts
- the retention of property by each party
- prevention of one person reducing joint wealth before separation by gifting assets
- valuation and control of a family business
- valuation of pensions and intangible assets
- capital calculations
- marital home
- maintenance payments depending on circumstances
- other legal provisions to protect your interests
This document is drawn by Net Lawman lawyers to comply with current Canadian law.
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