Post Nuptial Agreement

What is a Post Nuptial Agreement or PostNuptial Contract or Postnup?
A post nuptial agreement is simply a prenup that is entered into after marriage. In terms of content of the agreement, it is precisely the same as a prenup, and all the information on this website applies equally to prenups and postnups.

What is the legal status of Postnups in Canada?
Postnuptial agreements are permitted in Canada. You can enter into a prenup at any time, either before or after marriage. As a practical matter, the main difference really is that after marriage these agreements can be difficult to complete, as one party simply drags their feet or refuses to sign.

Will a Postnup really protect me?
It can protect you the same as a prenup can protect you. However, as discussed below, courts treat them with special caution, and when entering into one, you should be thinking in terms of protecting *future* assets rather than currently existing ones.

Are there any legal concerns about Post Nuptial Agreements?
Yes, absolutely. In determining the validity of a postnup, courts treat them with special caution. Even though the agreement may be exactly the same as a prenup, from a legal perspective, they are very different. This is because before you are married, you have no special legal rights or obligations to the person whom you are about to marry. Therefore, in legal theory at least, no one is giving up any rights when entering into a prenup.

However, the day you get married, you acquire various family law rights and obligations to and from your spouse. So, when you enter into a post nuptial agreement, normally at least one person will be giving up legal rights that they already have. There is nothing wrong with this, but a court will be extra cautious in examining the circumstances surrounding why a postnup was entered into when determining the validity of a postnup. So, you will need to be extra cautious in documenting this through legal counsel, and take extra care to ensure that the agreement is fair.

When are Post Nuptial Agreements used?
There is no right or wrong time for a postnup. One of the most common circumstances I’ve seen where a postnup is used is when the parents of one spouse are giving the married couple a matrimonial home as a gift. In that case, the parents may want to ensure that their child keeps the home in case the relationship ends. The parents may make the gift of the home conditional on the married couple entering into an agreement stating that their child keeps the home in case of separation. Such an agreement is likely to be upheld by a court, since: (a) the other spouse gets the benefit of living in a nice home while the relationship is intact; and (b) the other spouse is not losing anything by entering into the agreement – if they didn’t sign the agreement, they would not have a nice home being gifted to their spouse.

Another common postnup example is when couples enter into an agreement because it is required for a business venture. As part of a partnership agreement or shareholders agreement, there may be a requirement to enter into a postnuptial agreement ensuring that spouses of partners or shareholders do not gain any ownership or control of the business. Such an agreement is likely to be upheld by a court.

My spouse wants me to enter into a postnup waiving all spousal support – is this possible?
This is an example of a type of agreement that will likely be found invalid by a court. Once you marry, you have automatic rights and obligations in regards to spousal support. It would be a very unlikely set of circumstances where a court would permit someone to waive these rights completely after marriage. The suspicion would be that the agreement is really just a separation agreement in disguise and is done as a prelude to breaking up.

We were just married recently – what’s the situation for us?
If you were just married recently, you can be a lot more flexible with a postnuptial agreement. The reason for this is that, although when you get married, certain family law rights and obligations arise, it is unlikely that a newlywed couple has significant financial obligations to each other shortly after getting married. As well, many couples start negotiating a prenup prior to marriage, but simply are not able to retain lawyers and get the agreement prepared prior to marriage due to time, financial, and other constraints. Simply because you missed getting your prenup done prior to your marriage does not mean you can no longer go ahead with it.

I’m thinking about separating / I’m having an affair. Can I still enter into a post nuptial agreement?
The short answer is yes – you can still enter into a postnuptial agreement even if you have thought about separation or are having an affair, but you still need to negotiate the postnup in the utmost good faith.

The main case discussing this is: D’Andrade v. Schrage, 2011 ONSC 1174 (CanLII). In this case, the husband tried to set aside a postnup on the ground that at the time it was negotiated, the wife was having an affair and contemplating separation. The court decided that the postnuptial agreement should NOT be set aside because of this. Some of the points that the judge made:

* Spouses often think about separation when their marriage hits a rough patch, but don’t necessarily go through with it.

* How serious do the thoughts of separation need to be? A spouse can be thinking about it but not planning on going through with it.

* Forcing a spouse to disclose that they are thinking about separation or having an affair would likely end the relationship quickly.

* Financial arrangements about divorce are no fault in Canada; looking at thoughts of separation or an affair introduces fault into such financial arrangements.

* Postnups are there to deal with finances, not to enforce personal obligations such as staying in a marriage or being faithful.

In another case, Stevens v. Stevens, 2012 ONSC 706 (CanLII), the husband had an affair. As part of the reconciliation process, the couple negotiated a postnuptial agreement. The husband represented to the wife that he had ended the affair and was committed to working on their relationship. Despite this, he continued his affair throughout the negotiation of the postnup. Despite this, the court found that his conduct was not grounds to setting aside the agreement.

What’s the cost and process?
The cost and the process is the same as for a prenup. You can read about the cost here and the process here.

You’re Invited to Call or E-Mail!

If you’re considering a post nuptial 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, Hamilton, London, Markham, and Vaughn.

Comments

  1. Hello:

    I understand from your web site that this consultation would be free. If so, please answer the following. If we were to proceed, we would work through you, which at that time, I assume, fees would come into place, correct?

    I am considering asking my wife of 28 years for a postnup. The reason is that I feel, rightly or wrongly, that she hogs the vast majority of our disposable income. What I would propose is a separation of our finances. That is, all joint bank accounts, credit cards and debts (debts are few, <$12,000) be eliminated. We would then just set up our own bank accounts, lines of credit, credit cards etc in our own names. From then on, all income, debts and assests in her name would be hers and all debts, income and assests in my name would be mine. In the event of a divorce, she walks away with all that is in her name and I walk away with all that is in my name. And finally, we simply divide the net proceeds from the sale of our house. The intent here is not to set up for a divorce but to ensure I get my fair share going foward and into retirment in 6 or 8 years or so. I do not know what her reaction to this proposal would be. However, if she did agree, would such an agreement work. we make approximately the same amount (me about 15% more) and our investment balance favors her right now.

    Thank you,
    Frank (not my real name)

    • @Frank – Yes, this sort of arrangement could be possible, provided you and her are equalizing your net family properties first. In other words, you are dividing your assets as if you were separating, then in the future what’s in your name remains yours, and what’s in her name remains hers. A prenup or post nup can also deal with how family finances are to be handled, which seems to me to be a larger issue in your case.

  2. My husband has been caught cheating. Now he will like for the marriage to work but under the condition that I sign a postnup. I read over it and he only covers the house (that isn’t in his name but will be willed over to him when his parents die). He also has a business hat wasn’t mention and an non profit.

    Will the things that isn’t listed be available to me if I sign the postnup even though it isn’t stated in there? Will I still be able to get alimony is he adultery takes place again and a divorce happens? Will a judge even honor out postnuptial based on our situation? If I’m not entitled to anything will I be able to sue for emotional and mental distress?

    • prenuplawyer says:

      I know that it is cliche, but don’t sign an agreement without legal advice, especially when it is clear that you don’t understand what you are signing. As you are already married, there is no rush to sign this, and you can take your time to consider matters and obtain legal advice.

      As for your specific questions, it is not necessary to enumerate all assets that are covered. Generally an agreement will simply deal with “property,” which means all assets, and so, for instance, one would not necessarily mention a business specifically. Houses are often dealt with separately so the fact that the house is specifically mentioned by name, but other assets are not does not mean anything.

      Divorce in Canada is no fault, which means child custody, access, child support, spousal support, and division of property are dealt with without looking at the conduct of either party – so whether adultery has been committed does not matter.

  3. I read some where, that a postnup is invalid if there was a thought of a divorce before hand. We have been married two years and since then he has not worked and I have been supporting him and my one year old. He is the father. I have a great career that has an amazing pension plan. I wanted to get a prenuptial before marriage for did not find the time.
    I am scared that he is applying for credit cards behind my back. I found one that was racked up 5000 in two months!
    Questions: if I have already threatened separation can I still get a postnup.
    And
    Can I separate our dept… All bank accounts, credit cards, utility bills, car payments, mortgage are in my name. I have 3000 on my visa and 6000 student loan. I would agree to take on everything with my name on it and he take on all other dept incurred with his name on it before and after marriage. At that point after the postnup, any other dept incurred will be the person who acquired the dept. we would split the house base on percentage of payment put towards mortgage payments. Which I would keep track of in detail.
    And
    Can I protect my pension.

    • Also…. He is not a stay at home dad. I have just recently started work again and our daughter is in daycare that I pay for. He is looking for work.

  4. prenuplawyer says:

    @C – That’s an interesting legal question that I haven’t discussed on this site before. I’ve added some information to the main article to answer the question about whether you can still get a postnup after threatening divorce.

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