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The Power of the Prenup

A prenuptial agreement, more commonly referred to as a prenup, is a legal document used by couples prior to their marriage. It sets out details such as each individuals assets and liabilities, and how property should be divided upon the breakdown of the marriage. In Canada, we refer to these contracts as domestic contracts or marriage contracts and they are governed by section 52 of the Family Law Act.

There is a common misconception that marriage contracts are intended only for couples with significant assets. However, this is not true. A marriage contract is beneficial for any couple who is looking to protect their personal property when entering into a marriage and to help prevent a drawn out legal battle if the relationship breaks down. Beyond the property aspects, marriage contracts can address a broader range of issues such as support obligations between spouses.

It is important to note that a marriage can be set aside, in whole or in part, by the court pursuant to section 56(4) of the Family Law Act on the following grounds:

  1. Non-disclosure of significant assets, debts or liabilities at the time of contracting;

  2. Failure of a party to understand its nature and consequences; or

  3. Otherwise in accordance with the law of contracts.

Critics have argued that prenuptial agreements are a contributing factor to divorce as they put an expiration date on marriage. However, marriage contracts are beneficial for a variety of reasons. Firstly, many people remain trapped in unhappy marriages for financial reasons. While a marriage contract does not alleviate financial anxiety per se, it can help simplify the process of separation and divorce and help to prevent surprises for the party ready to leave their relationship. Secondly, prenuptial agreements can help to prevent the pain caused by a contentious divorce which can be harmful to the relationship between the parties, particularly where children are involved. Thirdly, a marriage contract provides greater certainty about what will happen if and when the relationship breaks down. Without the presence of the agreement, the division of property and assets will be left to the court. Therefore, prenuptial agreements give more power to the parties to determine these issues for themselves.

In order to obtain certainty and peace of mind, it is suggested to obtain legal advice and talk to your partner about entering into an agreement. The best way to understand and protect your rights is to consult a lawyer.

DISCLAIMER: The blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog.

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