What Can & Can’t Be In A Prenup

Generally, a prenup can deal with the following:

(a) division of property on separation or death;

(b) ownership of property (what is owned jointly and what is owned separately);

(c) inheritance of property;

(d) spousal support obligations; and

(e) the right to direct the education and moral training of their children.

You can include pretty much anything else that is not prohibited. So, for instance, you can require that a spouse designate the other spouse as beneficiary of life insurance policies, RRSPs, and pension plans, or state that a certain residence is to be designated a matrimonial home. Another common issue that people deal with in a prenuptial agreement is what happens to any pets.

There are a number of limitations to what can be included in a prenup. They can’t deal with the following:

(a) custody of or access to children;

(b) child support; and

(c) clauses considered illegal or immoral.

Clauses relating to fidelity or infidelity are generally not enforceable – for instance a clause stating no spousal support is payable if a spouse commits adultery would not be enforced by a court.

Similarly, you can’t put into your prenup any provisions regarding sex during your marriage.

As well, a court is permitted to set aside a provision if the court believes that it is unjust. What may be just now may be unjust twenty years from now, so it pays to carefully consider all possibilities of what can happen in the future.

Matrimonial Home
Can a prenup protect the matrimonial home? In short, yes.

There is a lot of misinformation out there about matrimonial homes. Yes, a prenup can deal with *the ownership* of a matrimonial home. So, for instance, you can set out in your agreement that one person owns the matrimonial home and retains ownership of it if your marriage ends.

However, note that there are two other legal rights to the matrimonial home that cannot be dealt with in a prenuptial agreement: possession and alienation. Possession deals with who has the right to live in the matrimonial home. Essentially, a prenup cannot kick a person out of the matrimonial home, even if they do not own it. Alienation deals with the fact that you cannot sell or mortgage the home without your spouse’s permission. The idea here is that just because a marriage has ended a spouse cannot find themselves kicked out of the matrimonial home or have it sold underneath their feet.

Assets Acquired After Marriage
A question I frequently get is whether a prenuptial agreement can deal with assets that you acquire after you get married. The answer is yes. A prenup can deal with assets, regardless of when they are acquired, either before or after marriage.

Prenups and Wills
A prenup deals with what happens when a relationship ends, and a relationship can end via death rather than separation. So, to a certain extent you can deal with what happens to your assets in regards to your spouse if you pass away. However, you will still need to prepare a will.

Typically, a prenup can deal with your estate in one of five ways:

1. It can require a spouse to leave certain (or all) assets to the other.

2. It can allow the surviving spouse to stay in the matrimonial home for a period of time (even the rest of their life), and set out conditions (e.g. how expenses are to be handled).

3. It can oblige the surviving spouse not to contest a will.

4. It can oblige the parties not to change their wills.

5. It can release the parties from any estate law obligations to each other. This is typically done in remarriages, where the couple may have children from a previous relationship whom they want to inherit their assets.

If you’re not sure what you want, then you can simply deal with everything in your will. If you plan on leaving significant assets to someone other than your spouse, it is best to deal with this in your prenup.

You’re Invited to Call or E-Mail!

If you’re considering a prenuptial agreement — or have already made your decision — you’re invited to call or email us. We’ll explain for free how you can protect your assets and plan your estate. You can call us toll-free at 855-PRENUP-4 or email us using our contact form here. We can help you anywhere in Ontario, including Ottawa, Toronto, Mississauga, Brampton, and Hamilton.

Comments

  1. I’m wondering about how prenuptial agreements work with existing debt. Can I sign something so that I am not responsible for my partners debt that he acquired before we married? I have 12k of debt and he has 38k…

    Thank you
    M Kelly

  2. @M – yes, a prenup can accomplish that.

  3. How often is a prenuptial/cohabitation agreement disregarded in court. I’ve heard multiple stories of judges completely throwing out prenuptial agreements in court.

  4. @Adam – See this article:
    http://www.prenup.ca/validity/

    It discusses the main reasons a prenup is can be found invalid, and how you can avoid these pitfalls.

  5. If assest have been aquired by bothe parties after marriage does each person have right to that such as profit if sale of property ?

    Karen

  6. Is a prenup valid if written by the parties, and duly signed and witnessed, without the service of lawyers?

    Also, if marrying in a foreign country, does the prenup have to be witnessed and in any other way validated in that country, if the country of residence will be Canada, not the foreign country?

  7. @Suzanne – Yes, a prenup written without lawyers *can* be valid. It would be a bit risky to do unless you know what you are doing.

    No, the country where you get married does not affect anything, including the witnessing of the agreement.

  8. Benny Hill says:

    I have a child support obligation from a previous relationship, can a prenup protect my girlfriend (soon to be depending on your answer wife) from paying it? I just dont want my mistake to be her burden.

  9. @Benny – Your girlfriend/wife has no liability for your child support, even without a prenup.

  10. If my future wife has a child from a previous marriage can I include a portion in the pre-nup that in the event of mailure in the mariage I can not / will not be held responsible for future child support if his bio-dad is a dead beat or will i be the defacto ex loco parentis?

  11. Karen Harder says:

    Hi there,

    I’am a single parent to my son. My son’s father is not involved in his son’s life but does pay his monthly child support obligation. My boyfriend and I are considering moving in together. He is concerned that if we do move in together and become common-law and something happens and we terminated our relationship that he would be responsible for paying child support for my son. Would that be the case??

  12. taniawu@live.com says:

    Can a prenup include clauses such as the property/income that bought in/make after marriage do not need to be shared with the partner when divorce?

    • @Tania – Yes, a prenup can include such clauses. To a large extent, as long as you and your partner agree on something relating to property division, it can be included in a prenup unless it ends up creating a very unfair result.

  13. MississaugaDad says:

    Can a pre-nup defeat family law equalization rules?

    I’m bringing a house into my second marriage. It will become the principal residence but it’s mine – I own it and have a small mortgage on it with accumulated equity in the house. I don’t want to be in the position of losing half of my equity and hard work again.

    • @Mississauga Dad – Yes, that is exactly what prenups do – override the regular family law equalization rules.

      A lot of people enter into a prenup to do exactly what you want – to protect their main asset, their home. So you can enter into a prenup that basically says your home, even though it may become a matrimonial home, remains yours regardless of what happens.

  14. Brian M says:

    My Fiancé and I are buying a House together but the proceeds from the sale of her previous home are being used as a down payment on the new home, $150K down, 100K Mortgage. How can her initial DP be protected?

    • @Brian – A prenup can do precisely that. So, for instance, you can have a prenup that says if this home gets sold or if you separate, your fiance gets her $150 K back, then the rest of the equity in the home is shared equally between you.

  15. Can a prenup include a clause preventing any equalization in the appreciation of a business that was mine before marriage but increased in value after marriage?

    • @Megan – Yes, absolutely. Basically, a prenup would exclude the business itself from the equalization process.

  16. I am entering into a marriage in which I have substantial assets (house with some mortgage), RRSP, and savings. My fiancé has no assets that are being brought into the marriage. While I clearly do not contemplate getting divorced (again), the reality is that anything can and does happen. I would like to protect my assets and am looing for a lawyer to help.

    Thanks,
    Gerry

  17. TorontoDAD says:

    My wife and I came to Canada ten years ago. She decided to go university but I worked hard to pay her university tuition and all our life expenses. All our monies and assets are joint. My total income during these 10 years was almost five times more than her. we bought a house together but I can say I paid 95% of down payment and mortgage payments. Can we have a prenup and she gives me the ownership of the house. if we get divorce does the court accept the prenup. Thanks

    • @TorontoDad – If you were not yet married, this could be done with a prenup. As it sounds like you’ve been married already for several years, it is problematic as your wife already has spousal rights to the house.

  18. Alessandra says:

    If one partner purchases a shared home due to the other partner’s bad credit rating and is the one financing the purchase as well, would there be any clause in a prenup that could protect their capital or would the other party be entitled to part of the home even if they do not end up paying for any of it?

    • @Alessandra – A prenup can set out pretty much any division of the home as a couple wishes. So, for instance, a common clause is that each party gets back their contributions to the capital in the home, and any appreciation is shared between the couple.

  19. Shanna Lee says:

    Can a pre-nup protect a party from being responsible for debt incurred by the other partner DURING the time of the marriage or common law relationship?

    • @Shanna – Yes. For instance, a prenup can state that each party is responsible for his or her own debts. As well, a prenup could exclude consumer debts from being included in net family property.

  20. Can we have a prenup stating that if either party causes marriage breakup due to infidelity, the other party is responsible for paying a fee (or so call a fine)?

  21. Can a prenup protect a party from being required to provide spousal support upon breakdown of the marriage whereby the other party enters into a marriage or common-law relationship with a new partner?

    • prenuplawyer prenuplawyer says:

      @Alexa – Yes it can. Whether such an agreement will be enforceable though is a different issue. It is really going to depend on the individual circumstances of the couple. For instance, for a couple who are older and both have good incomes and good health, then such a release of spousal support may be upheld by a court. On the other hand, if there are children, health issues, big differences in income, or a long-term relationship, then a release of spousal support may not be upheld in court.

  22. Lubica Kam says:

    Hi,
    I am divorced and I do not have any children. My new partner is divorced too, he has 24years old daughter. We are 53 years old. We want to buy a house, but my partner do not have any money. He finish pay his student loan last year.
    I will pay money for down payment for the house. How I can protect myself against his family in the case that something bad will happened to him?
    He is self-employee, does not earn a lot of money compare to me.
    Thank you.

    • prenuplawyer prenuplawyer says:

      @Lubica – Yes, a prenup will help you protect your assets, for instance the down payment for your house, in your situation.

  23. if a spouse is willing to relinquish all rights to the home, in a postnuptial agreement, despite having spousal rights to the home, and obtains independent legal advice in signing away such rights, can it be upheld in court?

    • prenuplawyer prenuplawyer says:

      @Sally – A person can relinquish all *ownership* rights to a matrimonial home in a post nuptial agreement with independent legal advice.

      There are certain rights that can’t be relinquished regarding a matrimonial home: you can’t kick a spouse out of the home, nor can you sell or mortgage the home without your spouse’s permission.

  24. Hello, I am looking to do the opposite of most. It is a bit unorthodox but given our situation warranted. I would like to include any future inheritance to be split equally should there be a marital breakdown. Is this possible?

  25. Hello
    Is it possible to place a clause in prenup stating that child support is entirely the duty of the other partner in case of divorce (my Partner is ready to sign such clause)

    • prenuplawyer prenuplawyer says:

      @Andy – I’m not entirely sure what you mean, but in any event, one cannot deal with child support in prenup. The law sets out what a person’s child support obligations are, and one cannot modify these with a prenup.

Leave a Comment

*

Content Protection by DMCA.com