I’m getting married in the United States. Where do I get my prenuptial agreement?
The relevant jurisdiction is the one that you are living in when your relationship ends. Where you get married is irrelevant for these purposes. So, even if, for instance, you get married in New York, if you are living in Ontario when your relationship ends, you would be governed by Ontario law, and you would get an Ontario prenup.
I’m going to be living in both Ontario and another country during my marriage. Will my Ontario prenup be valid in this other country?
This is a question only a lawyer in the other country can answer. Even if your Ontario prenup states that all family law rights are governed by the agreement, the agreement is made pursuant to the laws of Ontario, and the jurisdiction for any adjudication related to the agreement is Ontario, a foreign court may not enforce the agreement (for many reasons – e.g. some countries simply do not enforce prenuptial agreements).
What is typically done in these situations is that the international couple enters into two “mirror” prenuptial agreements – a prenup in both jurisdictions where they will be living that essentially say the same thing. That way you can be sure that regardless of which jurisdiction you live in, there is a valid prenup governing your relationship.
If I get my prenup in Ontario, then move to another country, will my prenup still be valid?
There is no way to prepare a prenuptial agreement that is valid internationally. If you are going to move to another country, you can’t be certain that your prenup will be valid in your new country of residence without obtaining advice from a lawyer in that country.
If you were not expecting to move to this other country, you may be able to obtain a post nuptial agreement. Again, you would need to obtain advice from a lawyer in that country to determine whether this is possible.
I’ve got a prenup from another country. Is this valid in Canada?
Whether a foreign prenuptial agreement is valid in Canada is going to depend on a number of factors, and you will need to sit down and have an in-depth discussion with a lawyer. Some foreign prenups will be; many will not be. Being an international couple is difficult – even agreements that are valid in Canada may not have the effect that you think they will.
This is a complex issue governed by section 58 of the Family Law Act of Ontario. We will need to look at section 58 of the Family Law Act in detail to help international couples. It provides:
The manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract, except that,
(a) a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario’s internal law;
(b) subsection 33 (4) (setting aside provision for support or waiver) and section 56 apply in Ontario to contracts for which the proper law is that of a jurisdiction other than Ontario; and
(c) a provision in a marriage contract or cohabitation agreement respecting the right to custody of or access to children is not enforceable in Ontario.
Let’s parse this provision carefully. In the first sentence, you can see right off the bat that a foreign prenup will be “governed by the proper law of the contract” – that is, by the law that the prenup says it will be governed by. So, this means that for international couples, a prenup will often be valid in Ontario. However, there are 3 exceptions set out in the statute.
The first exception – A foreign prenuptial agreement will be valid and enforceable in Ontario, and subject to the laws of Ontario, if entered into in accordance with Ontario law. In other words, the prenup must be entered into in accordance with the governing statutes and case law in Ontario, which is obviously not normally the case. For instance, a Romanian prenup is likely entered into in accordance with Romanian law, and not Ontario law.
This exception does not mean that the foreign prenup must comply with the entire body of Canadian law. But it must at least meet the formal requirements of Ontario law (made in writing, signed by the parties, and witnessed) and likely satisfy Ontario law requirements of consent and capacity, and likely at least take into account the general legislative scheme dealing with family law.
The second exception – Even where the proper law of the contract is a foreign jurisdiction, a court can set aside provisions in prenups under section 56 or 33(4) of the Family Law Act.
Let’s look at each of these in turn. Under section 56 of the Family Law Act, a court can disregard provisions in a prenup that deal with custody, access, child support, chastity, insufficient financial disclosure, lack of understanding of the agreement by one party, fraud, and duress. Under section 33(4) of the Family Law Act allows a court to disregard a provision for spousal support or a waiver of spousal support if such a provision would be unconscionable or if there was a default in payment. In short, anything that would not be enforced in an Ontario prenup will not be enforced in a foreign prenup.
The third exception – Custody and access provisions are not enforceable in foreign prenups (just like in Ontario prenups).
You’re Invited to Call or E-Mail!
If you are an international couple considering a prenuptial agreement — or an Ontario couple who may move abroad during your marriage — 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.