Commonly referred to as a prenup agreement, this is a type of domestic contract, also known as a marriage contract. A domestic contract is a family law term to describe marriage contracts, separation agreements, and cohabitation agreements. Let’s dive into the marriage contract/prenup agreement here.
A marriage contract is an agreement entered into by a couple usually prior to marriage but also sometimes after parties marry. This agreement can set out the division of property, and spousal support in the event of a breakdown in the relationship. If a prenup agreement is not in place at the time that a couple separates, then they will be bound by the provisions as set out in the Family Law Act and the Divorce Act.
A marriage contract allows the marrying couple to set out specific provisions to deal with their assets and liabilities from the marriage, including those they came into the marriage with and what they acquire during the marriage. Both parties are required to provide full financial disclosure at the time that the marriage contract is signed because otherwise a court may set it aside on the basis of a failure to make full financial disclosure.
A marriage contract allows the couple to specify how property, including the matrimonial home, will be allocated or divided in the event of a separation. A marriage contract can also modify or eliminate the wealth sharing provisions of the Family Law Act.
Child Support can also for children from a previous relationship. The prenup agreement allows the parties to specify whether they plan to provide support for one another’s children or whether each party bears the financial responsibility for their own biological children. Child support arrangements can also be outlined for any children that the parties have or will have together. However, such provisions are always subject to review by a court to ensure they are reasonable and will be disregarded where the court feels it is appropriate to ensure children receive the appropriate support they are entitled to under the law.
Spousal support, or the waiver of spousal support can also be specified in a marriage contract. Spousal support is typically paid to one party by the higher earning party and is affected by such things as the length of the marriage, whether the parties have children and whether one person made sacrifices in the relationship and also simply on the basis of need. Spousal support provisions can also be disregarded or ignored by a court where the court finds the agreement to be grossly unfair to one party.
So why would some people choose to sign a prenuptial agreement? This type of agreement aims to set out in advance each person’s financial obligations to the other and to avoid future litigation over these obligations. For example, parties entering into a second marriage may want to set out their rights to each other, or if there are children from a previous relationship, you may wish to sign a marriage contract.
Other examples include where one of the parties comes into the marriage with a property that will become their matrimonial home and wants to ensure they get a credit for its value on the date of marriage or protect themselves from having to share this asset at all with their spouse. These, among others, are all examples of where you may wish to consider a marriage contract. It is always recommended that before you get married, you speak to a lawyer and get legal advice on whether or not it is in your best interest to sign a prenup agreement.
Trust our family lawyers at Hummingbird Lawyers LLP. Our expertise in drafting marriage contracts can help you to break down the issues at hand and help you to ensure that your agreement can stand up in court, if necessary. We offer sound legal advice to assist you in understanding your rights and obligations so that you and your future spouse can come up with a fair and reasonable agreement.
It is always recommended that each party seek their own independent legal advice (ILA).
Contact Hummingbird Lawyers for all your questions regarding a marriage contract or prenup agreement. We’re here to help you every step of the way.
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