Marriage Contracts and Prenuptial Agreements in Ontario

What Can a Marriage Contract Cover?

• Ownership and division of property on separation.
• Spousal support — including waiving, limiting, or increasing entitlements.
• Ownership of specific assets, including businesses and investments.
• How the matrimonial home will be dealt with on separation.
• Any other matters relating to the couple’s financial affairs.

What Cannot Be Included in a Marriage Contract?

There are limits on what a marriage contract can do. A marriage contract cannot limit a spouse’s right to possession of the matrimonial home during the marriage. It cannot adversely affect the rights of a child to custody or access. It also cannot contract out of the obligation to support a child in need.

Requirements for a Valid Marriage Contract

Under the Family Law Act, a marriage contract must be in writing, signed by both parties, and witnessed. While independent legal advice is not technically required, courts are far more likely to uphold a marriage contract where both parties received their own independent legal advice before signing.

When Can a Marriage Contract Be Set Aside?

A court may set aside a marriage contract (or specific provisions) in certain circumstances, including if there was a failure to disclose significant assets or debts, if a party did not understand the nature or consequences of the agreement, if there was duress, undue influence, or fraud, or if the terms are considered unconscionable.

Protecting Your Marriage Contract

• Both parties should retain their own independent lawyer.
• Both parties must provide full and honest financial disclosure.
• The agreement should be negotiated well in advance of the wedding — signing under pressure is a red flag.
• The agreement should be reviewed periodically as circumstances change.
• Keep all documentation showing the process by which the agreement was reached.

Can a Marriage Contract Be Changed?

Yes. The parties can amend or cancel a marriage contract by entering into a new written agreement. Any amendment must follow the same formalities as the original contract.

Are Prenups Only for the Wealthy?

Absolutely not. While marriage contracts are often associated with high-net-worth individuals, they can be valuable for anyone entering a second marriage, anyone with a business interest or significant assets, anyone with children from a previous relationship, or anyone who wants certainty about financial arrangements in the event of separation.