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Prenups by Province

CONTENTS

  1. Prenup Ontario
  2. Prenup British Columbia
  3. Prenup Alberta
  4. Prenup Manitoba
  5. Prenup Saskatchewan
  6. Are Prenuptial Agreements Enforceable in Quebec?

Prenup Ontario

Marriage contracts are governed by section 52 of the Family Law Act in Ontario. This section gives statutory authority for people who are or will be marrying to enter into a prenup that sets out their rights and obligations to each other during their relationship and when their relationship ends. The section also states that certain rights regarding the matrimonial home cannot be dealt with in a prenuptial agreement.

Prenup B.C.

The situation in British Columbia is quite complicated as family law legislation is in the process of being amended. Currently, family law is governed by the Family Relations Act which does not cover common law couples in BC. However, the Family Law Act, which received Royal Assent on November 24, 2011 is scheduled to take full effect 12 to 18 months after this. The Family Law Act will apply to couples who live together for two or more years. As a practical matter, this makes it very likely that it applies to couples currently in common law relationships, as even if the relationship ends, a partner can simply wait until the new act is in effect and then take advantage of its provisions.

Under the British Columbia Family Law Act, cohabitation agreements are covered in sections 92 and 93. Section 92 states that couples are allowed to enter into agreements in which they divide property and the property can be divided or valued differently than required under the Act. Section 93 sets out the circumstances in which a court can invalidate the agreement, and these include the standard failing to dislose information, taking advantage of a partner’s ignorance, vulnerability, distress or need, or a partner not understanding the agreement. The section further goes on to state that if an agreement is signficantly unfair, then a court may set it aside.

Prenup Alberta

Sections 37 and 38 of the Matrimonial Property Act of Alberta are the provisions that govern a prenuptial agreement. The Matrimonial Property Act does not apply to cohabiting parties but the considerations for a cohabitation agreement are similar to those for a prenuptial agreement.

Prenup Manitoba

In Manitoba, property division is dealt with in the Marital Property Act. A prenup in Manitoba is considered a type of spousal agreement, which is defined in section 1(1) of the Marital Property Act. Section 5 of the Marital Property Act specifically allows spousal agreements to exclude the operation of all or part of the Marital Property Act, for all or part of a couple’s marital property.

Prenup Saskatchewan

In Saskatchewan, section 38 of the Family Property Act allows couples to enter into interspousal contracts.

Are Prenuptial Agreements Enforceable in Quebec?

Generally, a prenuptial agreement made in any province or territory other than Quebec will be enforceable in any other province or territory other than Quebec.

However, as most people know, Quebec has a different legal system than the rest of Canada. So, the question arises, is a prenuptial agreement made in a province or territory other than Quebec, enforceable in Quebec? This is particularly important where I live, in Ottawa, as people often move from Ottawa to Gatineau and vice versa.

The answer is: yes and no. In Quebec, according to section 3124 of the Civil Code:

“The validity of any agreed change to a matrimonial or civil union regime is governed by the law of the domicile of the spouses at the time of the change.”

So, this means that in Quebec, the validity of a prenup will be governed by where you live at the time you enter into the agreement. So, an Ontario prenup will be valid in Quebec if it is valid in Ontario.

If you and your spouse lived in different provinces at the time of marriage – for instance, if one of you lived in Ottawa, and the other in Gatineau – the domicile is the law of your first common residence. So, in this example as long as you and your partner initially live in Ontario rather than Quebec, this means that an Ontario prenup would be valid in Quebec.

There is one exception to all of this – the family patrimony. According to section 423 of the Civil Code:

“The spouses may not, by way of their marriage contract or otherwise, renounce their rights in the family patrimony.”

The family patrimony consists of the all residences (i.e not just a home but also including a cottage, etc.), furnishings, family cars, and retirement plan rights accrued during the marriage. So, essentially anything used by the family, plus pensions/RRSPs acquired during the marriage. Anything else, such as investments, bank accounts, items just used by one party, such as tools, profit sharing plans, pension plan rights accrued prior to marriage, gifts, inheritances, etc., is not included in the family patrimony.

So, in short, assets that are included in the family patrimony would be divided by Quebec law regardless of what the prenup said, and the remaining assets would be divided according to 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 (800) 837-0460 or email us using our contact form here. We can help you anywhere in Ontario.

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 (800) 837-0460 or email us using our contact form here. We can help you anywhere in Ontario.

Prenup Definition

What is the definition of a Prenup?
A prenup is a type of domestic contract under family law that allows a couple that is about to marry to enter into an agreement primarily about how assets and income are to be divided should their relationship end, either by separation or by one of them passing away. The typical issues dealt with are the division of property and spousal support.

The agreement comes into effect on the date of marriage, but it is best to enter into the agreement as soon as possible.

Prenups are permitted in Canada. Several provinces, including Ontario, have statutes that specifically set out the requirements that must be met for such an agreement to be valid. This website offers information about how the law in Canada treats prenuptial agreements, how these agreements work, and the practicalities of entering into such an agreement. Of course, we are always happy to help you prepare a prenup for you. Find out on our website:

1. The advantages of having a prenup.

2. The typical things that are included in a prenup, and things that the law expressly prohibits including in the agreement.

3. The typical items that are included in a prenup, to give you a framework for thinking about your agreement.

4. The typical types of situations when having a prenup is beneficial.

5. Why we believe most couples should have a prenup.

6. Differences between prenuptial agreements in the provinces across Canada, particularly Ontario, British Columbia, and Alberta.

7. Answers to common questions I am asked about prenups. If the answer to your question is not there, please feel free to contact us by telephone or email, for a free legal consultation.

8. What needs to be done to ensure that a prenup is legally valid.

9. The possibilities and perils of entering into a post nuptial agreement after you are already married.

10. The process involved in entering into a prenuptial agreement.

What are the various legal terms for a prenuptial agreement?
Each province and territory in Canada has its own legal term for a prenuptial agreement.

In Ontario, if you are getting married or already married, a prenup is called a marriage contract. If you and your partner are living together in a common law relationship, a prenup is called a cohabitation agreement. Together, these two types of agreement, along with separation agreements, are called domestic contracts.

In British Columbia, a prenup is known as a marriage agreement.

In Alberta, a prenup is called a pre-nuptial contract. A post nup is called a marriage contract. For a common law relationship, the agreement is called a cohabitation contract.

In Saskatchewan, a prenup is known as an interspousal contract.

In Manitoba, for an unmarried couple, a prenup is known as a cohabitation agreement. For a couple planning to get married, a prenup is known as a marriage contract, marital agreement, or pre-nuptial agreement. The general term for these types of agreements, including separation agreements, is a spousal agreement.

In New Brunswick and Nova Scotia, Prince Edward Island, Northwest Territories, Yukon, and Nunavut, a prenup is called a marriage contract.

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 (800) 837-0460 or email us using our contact form here. We can help you anywhere in Ontario.

Post Nuptial Agreement

Can you enter a prenup after marriage?
Yes, it is know as a postnup or 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 (800) 837-0460 or email us using our contact form here. We can help you anywhere in Ontario.

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