What is a Prenup and Do You Need One?

Written on behalf of Arbesman Hamilton LLP

Many couples do not think that they need a prenuptial agreement because they do not own significant assets. Indeed, the use of a prenuptial agreement (more commonly referred to as a pre-nup, and also known as a marriage contract), is often associated with celebrity or professional athlete marriages, since such agreements are often a given in high-net worth relationships where substantial assets are involved.

Many more couples are opposed to the thought of making such a contract with their partner, believing that having a prenup indicates that a marriage is doomed before it even begins, since the very nature of a prenup contemplates the end of a marriage.

However, there are many benefits of having a prenuptial agreement and a prenup is something that all couples who are planning to get married should consider.

What is a Pre-nup?

The Ontario Family Law Act contemplates domestic contracts, which is an umbrella term that can refer to a number of agreements, including a marriage contract, cohabitation agreement, or separation agreement.

Section 52(1) of the Act specifically defines “marriage contract” as an agreement entered into by two individuals who are married to one another (or who intend to marry one another), which sets out their respective rights and obligations during the marriage, or in the event of separation, annulment, or death.

Prenups can be entered into by both same-sex, and opposite sex partners. They can also be entered into after you are already married (sometimes called a postnup), with the same concepts applying.

What Can be Included in a Pre-nup?

Section 52(1) outlines what can be included in a marriage contract, including:

  • Ownership of or division of property, including personal property such as pets;
  • Support obligations;
  • The right to make decisions about “education and moral training” of their children.

Certain things that prenups cannot address are custody of and access to children. Prenups likewise cannot limit a spouse’s possession rights to the matrimonial home.

Lifestyle Clauses

In addition to outlining details of property and asset division, as well as decisions pertaining to child-rearing, prenups can also address any number of day-to-day aspects of marriage . These are known as “lifestyle clauses” and can include things such as frequency of visits from in-laws, social media clauses, division of labour clauses, and similar.

Depending on the nature of the lifestyle clauses included, they may be difficult to enforce, as violations may be challenging to prove.

Benefits of a Pre-nup

Pre-nups can be an effective way to protect your assets and interests in the event of a breakdown of the relationship. They can also minimize conflict or avoid future litigation by carefully outlining how the couple will deal with many major issues that can become contentious during a separation or divorce. This can be helpful even if you are not Beyonce and Jay-Z, or any other incredibly wealthy couple.

Furthermore, rather than cursing a marriage or indicating its inevitable end, the process of negotiating a prenup can actually be beneficial: helping couples communicate, to address major issues fundamental to a relationship, and to agree on what they want in their relationship in advance of taking the big step of getting married. Discussing expectations in advance of a marriage can help a couple identify any potential problems in advance, and can ultimately foster a healthier relationship.

If you do decide you would like to enter into a prenup before you get married, or if you are already married and want a postnup drafted, you and your partner will have to see a separate lawyer and each obtain independent legal advice.

The Toronto family lawyers at Arbesman Hamilton LLP have many years of experience advising clients on all domestic contracts including prenups, postnups, and cohabitation agreements. Our ultimate goal is to protect property and other assets of each of our clients, and mitigate any future risk they may face in the event of a marriage breakdown. Contact us online or at 416-481-5604 to book a consultation.