Pre-nuptial agreement

About this prenuptial agreement

A prenuptial agreement sets out how assets and liabilities will be divided if you separate permanently or if your marriage ends.

Making 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 control who inherits your wealth.

Many people consider planning for break-up unromantic shortly before a wedding or civil partnership. However, preparing a prenup emphasises that the reason for marriage is love and not money, and can give both people confidence about what will happen should the marriage fail.

Why use this prenuptial agreement

• provides security during and after marriage to both people;
• avoids future disputes over how assets should be split and what each person contributed;
• helps speed up the divorce process and saves divorce costs;
• helps ensure that items with sentimental value remain with the person to whom they matter most;
• helps ensure that the people you choose (such as children from an earlier relationship) inherit your wealth;
• prevents your wealth from being given away shortly before break-up;
• helps protect business assets from being split and sold;
• makes a separation less emotionally stressful by removing the need to negotiate over as many things.

Is a prenuptial 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.

Alternative documents

We also stock a simpler version of this document that has been written for couples who are likely each to be financially independent before the marriage or partnership and for whom the concern is about ensuring that wealth and assets remain in the possession of whichever one brought them in, should the marriage fail.

We expect that this alternative document will be more suitable for older couples who have already accumulated wealth, and who perhaps are marrying for a second time.

See Prenuptial agreement: protection of property.

Agreement contents

The Net Lawman pre-marital agreements have been written to help you to comply with the suggested legal requirements.

This agreement covers a very wide range of possible outcomes and also deals with many matters to be agreed during your marriage.

There is extensive coverage of property, possessions, investments.

Children arrangements are covered broadly and shortly, because circumstances at divorce can be very different to those at marriage and a judge will make an order based on what he sees at the time.

This agreement covers the following:

• the parties’ personal details;
• relevant dates and application of principles likely to be required by law;
• ownership of the home now;
• separate ownership of property and possessions;
• many alternative arrangements for ownership of assets;
• joint bank account;
• sharing living expenses;
• children arrangements and after separation;
• property of each party remains his own;
• dealing with family home;
• children arrangements;
• financial support of children;
• financial maintenance of one of you by the other;
• prevention of one person reducing joint wealth before separation by giving away assets;
• dealing with family company and / or jointly owned business;
• capital calculation and transfer;
• promise of confidentiality;
• if one of you should die;
• other legal provisions to protect your interests;
• final statement of understanding of legal requirements.