What Can & Can’t Be In A Prenup

What can be included in a prenup?

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.

What canNOT be included in a prenup? 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.

What can a prenuptial agreement say about a 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.

What can a prenuptial agreement say about 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.

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

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.

    • What happend to the property before and juring marriage when spouse dies, can prenuptial agreement prevent the wife/ husband from inheriting the property???
      Can the ex wife and thier children can get the property? Thank you

      • prenuplawyer says

        @Lance – Yes. A prenup deals with what happens when a relationship ends, and a relationship can end by separation or death. So you can set out in your prenup that neither party has any estate law obligations to the other, which would mean that you can dispose of your assets by will and beneficiary designation as you choose.

  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:
    https://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. 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.

      • But you said that the prenup won’t prevent the other partner from not living in the house so whats the point..it’s my house and she still can live in it and I can’t even sell it without her permission?
        alt with in a prenuptial agreement: possession and alienation. Possession deals with who has

        • prenuplawyer says

          There are different rights regarding a matrimonial home. One is ownership – you can put in a prenuptial agreement that a particular person owns the home.

          That being said, there are certain rights regarding a matrimonial home that you cannot put in a prenuptial agreement. Both parties have the right to remain in the matrimonial home if their marriage ends. The idea is that a home is more then a shelter – it is a place to live, and the couple may also have children. You cannot give up this right in a prenuptial agreement.

          After a year, you can get a divorce, and then the home is yours to do what you want with it. Typically, couples reach some sort of agreement before then about the non-owning spouse moving out.

          It makes sense that even though you own a home, you cannot simply come home one day, change the locks, and lock your spouse out of the home, leaving them nowhere to live and no contact with their children.

  14. 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 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 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 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 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.

  26. hi we both just recently got married. we were planning to get a prenup before the marriage but you know how things go. you are so busy being a newly wed. and then it slips your mind because life gets so busy. we both are recent graduated working our first corporate jobs. so asset/income wise.. making roughly the same and pretty much two broke recent graduates loaded with debt. our biggest concerns is that we both want to be responsible for our own debts. also future inheritance from parents should not be divided, god forbid in case of a divorce. we have a joint account, where we keep money for joint expenses/savings. but we have separate bank accounts that we would like keep that way whether married or divorced. will a pre nup protect us in a circumstance like that ?

    • prenuplawyer says

      @Zhasra – Yes, a post nuptial agreement can do all of that. You did not say how long you’ve been married, but if it is just a few weeks or months, the legal situation is not really much different than if you were about to get married.

  27. Hi ,
    I’m widow I have one daughter all my rrsp saving insurance and house I have will already made that if I passed my daughter’s get it. My queston is if my boyfriend moved in with me his still have the right to claim my previous properties that I already made a will name to my daughter.? I live in manitoba how much cost to made a prenuptial agreement? just a basic agreement? Stated that just all my previous property remain mine. Both our kids are grown up . Please I need your advice what’s the best for me . Thank you

    • prenuplawyer says

      @Merlyn – Yes – in your prenup you and your partner can expressly waive (release) all rights to the other’s estate. So, that means you would not be required to leave anything for him in your will, nor would you be required to designate him the beneficiary of any life insurance policy or registered investment.

  28. If a 150k home is paid for and has no mortgage prior to entering into marriage and after 10 years for example a divorce occures and the new value of the home is 180k, does the owner of the house still have to pay half of 30k that was gained in value to the spouse after the ten year period?

    • prenuplawyer says

      @Mike – If a matrimonial home is owned on the date of marriage, then without a prenup, essentially the entire equity in the home on the date of separation gets shared equally by both parties, regardless of what the equity in the home was a the date of marriage.

  29. Hello,

    My fiance is a recovering addict. I own what will become the marital home. If we have a prenup that states that upon my death, my children would maintain ownership but that he could live here – could it specify that it is only on the basis of him remaining clean and sober? That if he started using they could have him removed? I have three adult children and a 4 & 6 year old.

    • prenuplawyer says

      @Jenny – That’s a complicated scenario for which you’ll need to get an estate lawyer involved.

      The first thing that comes to mind is – do you really want him removed from the home? What will happen to the minor children? What will happen to the home?

      While a court may enforce a provision that your partner not be permitted to live in the home if he is not sober when you pass away, it is a different matter to force him to leave the home some years later based on allegations that he is no longer sober, and a court may not do that.

      You’d need your estate lawyer to draft up a provision clearly defining what is meant by sober, and perhaps allow your trustees to seek a professional opinion, or require periodic drug testing of your partner as a condition to remain in the home.

      As for the prenup, I’d simply deal with it by ensuring that your partner releases all rights to the home (and perhaps other assets) if you pass away, then you can be more generous than that in your will if you choose. It does not make sense to go into the whole issue in detail in your prenup – your will is the appropriate place to deal with this.

  30. Hi – my bf got burned by his ex. She cheated after 35 years with his brother and took half of everything and the house. They now live in it on his $10,000 a month support payment and he’s so bitter.

    My bf bought a new house and we live together and he has had a cohabitation agreement/pre-nup written up. He has a lot of money and I do not. Because he is so bitter the agreement is not very nice. He’s actually a nice person but not about this.
    1) the house is in his name, I will get back my small monthly contribution to the mortgage if we split. No matrimonial home.
    2) there will be no shared property, we will keep incomes and savings separate.
    3) no spousal support if we split except $1000 a month per month we are together up to $50,000.
    I am in my 40s and don’t make very much and don’t have a lot of savings. I had hoped to start saving with someone for old age. All will be great if we stay together but if he trades me in for a younger model in 20 years what will I do? Do I have to sign it or can I suggest an alternative or…

    • prenuplawyer says

      @Paige – No, you don’t need to sign this agreement. The best way to look at this is as a process of negotiation. That is your boyfriend’s initial offer. It up to you now to make a counter-offer, perhaps with the help of a lawyer, that tries better to accommodate both your and your boyfriend’s needs. It is certainly understandable that after a nasty separation or divorce your boyfriend will be bitter and worried about going through this again. But there are compromises that can be made that address both your concerns and his.

  31. My Gf and I just got back together she wants to marry and have another kid in the future and I am hesitant because of what she did to me financially in our seperation. I make 120K and she makes around 40K. I have money to buy a house and she doesnt.

    Can I protect buying a house if we are already common law? Upon purchase
    Can I protect buying a house if we are already married? Upon purchase
    Can we arrange custody of our current and future kid (50/50 custody)?
    I told her I dont want to have another kid unless we can make an agreement to 50/50 custody before having the next as I dont want minimal custody at her will or my $ like last time

    Basically I make really good money and I asked her to sign a prenup and custody agreement and she flipped. In my mind if you got nothing to lose and dont want any financial game from me it should be a no brain to sign off? Shows me she has nothing to lose. I put a 5K Car in her name and she took it when we split. Im worried about a house getting taken from me if I pay for it all given what she did with 5K. She doesnt want to save or get us ahead just live pay cheque to pay cheque but I want to start buying investment homes and if im doing it all I would like to protect my hard earned assets.

    Please help!

  32. Elizabeth says

    In the case of a separation, are bank accounts and assets still split equally between both parties with a prenuptial agreement?

    • prenuplawyer says

      @Elizabeth – No, you can set out in your prenuptial agreement how you want bank accounts and assets split.

  33. We were married less than a year ago, and a few months ago purchased a home using only my inheritance. No money is owed on the home. Both of us are on the title. Lately my spouse has been struggling with substance abuse which changes his moods and worries me. Although I love him and don’t want to separate, he sometimes mentions separating from me. I have anxiety with his name on the title of our home. In order to provide stability to our daughter, he has offered to remove his name from the title of the property. Would removing his name from the title be enough to ensure it would be mine if we were to separate, or should we consider doing up a post nupitual agreement as well? Or, is there an avenue we have not thought of that would better better suited for our situation?

    • prenuplawyer says

      @Stella – Removing your husband’s name from the title of your home will provide some protection – for instance, if due to his substance abuse, he runs up debts, and creditors attach a lien on the home as a result.

      However, in terms of a separation, removing your husband’s name from the title won’t have much impact, as essentially, you’re still going to have to share the value of the home with him if your relationship ends. So yes, you would need a post nuptial agreement to remove the home from the division of property if you separate. If the home was purchased after marriage solely with inherited money, then a court would normally find such a post nuptial agreement reasonable.

  34. Hi
    I have a teacher’s pension that I would like to leave to my children. If I get married is my spouse automatically entitled to it or can I waive this in a pre-nup?
    Thanks so much for your assistance.

  35. Ency Rahmani says

    Hi, i own a house which fir mortgage purposes is under my name but my mother makes all the payments from utilities to mortgage and snow salt and napkins because its her house, i want to get married, and we are worried my future husband will get half of the increased value after the date of marriage till day of divorce, i do not want him to benefit from this house until my mother is alive or even after, does a prenup protect me? or no? how can i protect myself ?

  36. Hi, My husband and I have been separated for a year and are trying to reconcile. I had an affair and he wants a postnup stating that if I cheat again or have any contact with 2 of my friends or the guy that I had the affair with our assets will be split 80% for him and 20% for me. Is this enforceable?

    • prenuplawyer says

      @Kelly – No – family law is no fault, and an agreement like this essentially introduces fault into it. A court would be very unlikely to enforce an agreement that stated that.

  37. Hi my name is Hiba Najeb I got married in Syria in 2007 and I signed around 5 pages I was told from my husband it was for immigration pourpose but I’m wondering if it was prenup papers is he able to do that with out me knowing what it’s for or me and him not being with witness.

  38. Hi. My husband and I are separating after 10 years of marriage, and another 8 or so of living together prior. We have a pre-nup that completely releases each other from division of property and spousal support. The assets are very one-sided in my favour, hence the pre-nup. I am hoping to buy his share of the home. There are no children. My question is about the separation agreement…as the pre-nup states that we categorically have no interest in each other’s assets and there will be no equalization calculation or division of assets upon marriage breakdown, do we have to disclose their current value in the separation agreement? The home buy out negotiation does not require him knowing what funds I have available, but I don’t want to leave the door open for him to contest the separation agreement down the road or for a court, if ever we went there, to feel I was trying to hide assets. Can the separation agreement simply state something like “as per the pre-nup, there are no assets to be divided”? Thanks.

  39. Hello,

    My boyfriend and I are talking about getting married. At present he makes much more money than I do and has much more assets than me. We would like to keep all assets pre-marriage separate, but have everything be considered equal post-marriage. He wants to put in our prenup that he should not have any spousal support obligations to me in the future if we should divorce, but I don’t think that is fair because I may be making sacrifices in my career for the sake of my family, which may contribute to me having a lower income than my true potential. What would you suggest in a situation like this? When a spouse really wants the other to waive rights to spousal support, how often does the court uphold that vs not enforce it? You mentioned above that if there was a big discrepancy in income and there were children involved, then the court may not enforce that term of waiving spousal support, but how big of a discrepancy in income would have to exist (ex. >50 000$, >100 000$)? Thank you!

  40. I have a question about a certain prenup. My finace is german but lives in Canada as a permanent resident. I am german aswell and after our wedding we’ll apply for me to become a permanent resident too. I will keep 2 bank accounts in Germany because I maintain and hold money that belongs to my family. Is it possible to write down in a prenup, that this money can’t be handled by my future husband and that it will “go back” to my family in case of my death? This would be the only reason for us to have a prenup. Or is there another simple way to get this confirmed. Thank you for your help, I appreciate any advice.

    • prenuplawyer says

      @Jana – You could exclude the two bank accounts or any money from your family. There would need to be some sort of limitation on what funds are excluded, otherwise you could transfer everything the family owns to those accounts, and claim everything is yours.

  41. I was wondering if a prenup is required to protect a trust fund so long as it is kept it seperate and if student debt of one party remains their own after divorce.

    • prenuplawyer says

      @Alex – Regarding a trust fund, the increase in value of the trust fun during a marriage would be shared without a prenup. If you expect the trust fund to increase in value during the marriage, and wish to protect this, you could do so in a prenup.

      Regarding student loans, these would remain the liability of the student, unless the other party took some action (cosigning, guaranteeing, etc) that made them liable for the loans.

  42. Can I protect my pension plan even know I will be still working 15 yrs ? Planning to retire with 37 years service and if I was to get married to someone can I protect this fully even after together ?

    • prenuplawyer says

      @Kerry – A pension has two aspects to it – it is an asset, and at some point, it will be an income stream. If you and your partner agree to it, then you can state in your prenup that your pension would not be shared if your relationship ended. Normally that will not be an issue.

      You can also deal with spousal support in a prenup. Spousal support is primarily based on the income of each spouse. You may be able to say in your prenup that when you retire, and are living off your pension income, no spousal support would be payable. But you would need to review with a lawyer the likely scenarios about what each person’s income and financial situation would be 15 or more years in the future when you are retired. For instance, if you are married for 15 years, and your spouse has no pension or savings, and you have a decent pension and savings, then a court may well find it unconscionable that if your relationship ends, you do not pay spousal support from your pension income.

  43. Hi,
    So my fiancé and I are common-law, for 3-4 years now. For a little context, I moved away with him for his work. I left my job, my family, and I had to put off school for another 3 years. He wants to me sign away my spousal rights to his pension. I’m not familiar with my spousal rights, and I don’t know if he’s taking advantage of that or not.

    • prenuplawyer says

      @Kayla – That is something about which you really need to get independent legal advice from a lawyer. For common law couples, there is no automatic division of assets, so you may not have any rights to his pension if your relationship ends. Also, for some pensions there are certain rights that cannot be contracted out of – e.g. if he passes away you may be entitled to receive a survivor’s pension.

  44. Question
    I am a physician just starting practice. I am incorperated. For the prenup – can i state if divorced my partner cannot get half the funds of the corperation? As in this money is for my future retirement/pension plan?
    How does this work? Do physicians have to pay out half their income that they pay themselves? Or in divorce would they have to liquidate their corperation?

    • prenuplawyer says

      @AA – In Ontario, it is the *value* of the assets that are divided, not the assets themselves. So a medical professional corporation would be divided the same as any other asset. The corporation will be valued and that value will include any investments held by the corporation.

      Yes, you can state in a prenup that the corporation and its assets are not divided. Note that could mean none of your assets are divided, in the sense that you could choose only to take money out of the corporation for your immediate use, and keep all savings in the corporation.

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