Prenuptial agreement: protection of property

About this prenuptial agreement

Nobody enters into marriage or civil partnership expecting it to end. However, all relationships change over time, usually in circumstances that no-one can foresee. Sometimes it is prudent to plan for the worst in the expectation that it won't occur.

This simple pre-marital agreement states that each party will retain the assets, property and possessions he and she each owned when he and she entered into marriage. It has been written for couples for whom financial support from the other is less important, perhaps because the partners have already accumulated enough wealth during their lifetimes to support themselves independently. The document seeks to protect ownership of that wealth, not to ensure one is supported by the other.

Of course, the agreement does provide for assets jointly bought, full disclosure and other elements crucial to acceptability by a court.

Why use this prenuptial agreement

• provides security during and after marriage to both people;
• avoid future disputes over how assets should be split and what each person contributed;
• saves legal costs;
• 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 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 another prenuptial agreement which covers a much wider range of possible outcomes and which also deals with matters to be agreed during your marriage.

That alternative version enables you to define your intentions over broader areas. There is extensive coverage of property, possessions, investments.

Children arrangements are included, but 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.

Agreement contents

This agreement covers the following:

• the parties’ personal details;
• relevant dates and application of principles likely to be required by law;
• that property of each party remains his own;
• prevention of one person reducing joint wealth before separation by giving away assets;
• what should happen if one of you should die.