Validity of Prenups

Is A Prenup Legal?

In not too distant past, prenups were not legal as living together without being married was considered against public policy. However, nowadays they are legal and in fact, several provinces have statutory provisions codifying their legality. In Ontario, section 53 of the Family Law Act is the statutory authority permitting them.

However, just because they are legal does not mean that every prenup will be enforced by a court. They can be found invalid both on procedural grounds and substantive grounds – so the process of entering into your agreement is just as important as what is contained in it. Here are the main circumstances in which they will be found invalid:

1. Signatures and Witnesses. A prenup must be in writing (no oral prenups), and signed by both parties entering into the agreement. Each signature must be witnessed (and it is a good idea to use someone whom you will be able to locate many years into the future if needed).

2. Financial Disclosure. You and your partner must provide complete disclosure of your financial situation to each other prior to entering into a prenup. The disclosure include both income and financial assets. Financial disclosure must be detailed – i.e., it’s not enough that your partner knows you own an RRSP, they must also know its value.

Courts take the view that you can’t intelligently enter into a prenup without this information so if this isn’t done, your prenup risks being invalidated by a judge. It is a good idea to include the financial disclosure as a schedule to your prenup, or at least keep the papers showing financial disclosure was made.

3. Duress or Coercion. As is true for any type of contract, duress or coercion to enter into a contract can result in the contract being invalidated. So, don’t put pressure on your partner to sign a prenup.

Often the pressure won’t come from your partner, but your partner’s family – perhaps their mother or father. That sort of duress or coercion can also result in a prenup being invalidated. In other words, courts only enforce contracts that are entered into by both parties of their own free will.

4. Grossly Unfair. Judges can also invalidate a prenup on the ground that it is grossly unfair. For instance, if after a long term relationship one partner is left destitute while the other is extremely wealthy, a court is likely to step in and address this perceived injustice by voiding the prenup.

5. Illegal Clauses. Certain things are not permitted to be in prenups. The most important of these things are clauses relating to child custody and child support. As well, this includes any illegal acts or “moral” type clauses such as penalties for adultery. If these sorts of clauses are included in a prenup, they normally will be struck out without affecting the rest of the agreement.

In short, if you are fair about things when entering into a prenup, and follow the required rules, the chances are very good that your prenup will be valid.

Don’t believe me? Here’s what the Judges say:
“As both had experienced prior matrimonial breakdowns, they had the wisdom and foresight to enter into a marriage contract on the eve of their marriage.” – The Honourable Mr. Justice F. Bruce Fitzpatrick

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.

Comments

  1. Hello Prenup.ca-team,

    my partner and I are thinking about getting a prenup before our marriage in May. My partner has Canadian citizenship and I am a German citizen. In the future we are planning to live in Germany. Now, my question is whether we will be able to transfer the Canadian prenup to Germany and whether it will be valid. Also, do your services include a notary certification of the prenup document?

    Thank you for your help!

    Best regards,
    Nicola

    • @Nicola – You would need to consult with a German lawyer as to whether a Canadian prenup is valid there. It is quite possible that it is not. If you plan on living in Germany, then you should get a German prenup.

      As well, note that prenups in Ontario do no need to be notarized.

  2. Sarabrynn Hudgins says:

    My partner is Canadian and I am American. If we get a prenup agreement with you guys, will it be valid in the US (we do not yet know in which country we want to live permanently). Thank you!

    • @Sarabrynn – You would need to check with an American attorney in the state in which you plan to live to determine whether a Canadian prenup will be valid there. Even if it is valid there, it is possible that it may not have the effect there that you wish it to have. One thing you can do is get two “mirror” prenups – one in Canada, and one in the US, that say the same thing. That way you can be certain that regardless of where you live, you will have a valid prenup.

  3. Hi

    Does it protect the existing assets one owns, as well as the assets one party will acquire as part of their business?

    • @Andy – Yes. A prenup can protect property acquired either before or during a marriage.

      • Santiago says:

        The only time a young couple might want a peatarimrl agreement is when one has significant assets from family and the family wants to make sure that, in case of divorce, there is some certainty about how much will go to the spouse for property division and support. Agreements like that would create a level of comfort for family-owned businesses and other family assets, knowing that, if a divorce occurs, the amount a spouse would get would be the amount in the agreement, not a share of family estates or businesses.

  4. If I do my prenup agreement using the bronze package. what should I do after? print the doc and sign it in a notary with my fiance?

    Thanks.

    • prenuplawyer prenuplawyer says:

      @Chris – All the instructions are included with the package. Notaries are not used for prenuptial agreements.

  5. michael says:

    Hi There, I’m Canadian and my wife to be is from Russia. Marriage is necessary for the immigration process. The way I see it we can only get a prenup in Russia which may not be valid in Canada. Is there a better way?

  6. prenuplawyer prenuplawyer says:

    @Michael – You can get both a prenup in Russia and a prenup in Canada. Both would say the same thing, but be valid in their respective countries.

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