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.


  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.
    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.
    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.

  5. We have been married 4 years and 2015 was a very hard year for us. He has a history of drug and alcohol abuse.. not a daily user but a highly functioning addict. We split up in Jan of this year but recently got back together. He now wants to start his own business and wants me to give him some funds (rrsps) to start. In return, I want him to sign over our rental property to me… a business that was mine before marriage. So he has his business. .. I have mine. But I also want to separate all finances from him..because he is still in denial of his habits being a problem and I need to protect mine and my children’s future investments (they are not his children). Would these be good reasons for a postnuptual that would be upheld? Thanks

    • prenuplawyer says

      @Fran – There is not enough information to answer your question. But to give you some guidance, if you and your partner enter into a post nuptial agreement that essentially divided your property as if you were separating, and then kept property separate after that, given what you’ve said, that would be fine.

  6. My partner and myself have been in a relationship for approximately 15 years. In August 2003 we were married years after we became partners, when the legislation related to marriage included same sex relationships. Before that event took place, I sold a business and used most of the funds renovating our first property. Since our marriage, after 7 years of litigation, I was awarded a settlement for sexual abuse I experienced as a child. Most of this money was used to complete the renovation on our property as well as pay off a considerable debt under his name only. Lately, we purchased a new home, and shortly thereafter I received an inheritance which was used almost entirely renovating our new home. I want to separate but my partner wants to continue and has told me he would sign an agreement recognizing my significant financial contributions to our previous home and to our current residence. I want an agreement that acknowledges reflects a portion of the of the sexual abuse settlement but all of my inheritance contribution, payable if the marriage ends and our current home, our only significant asset, is sold. Is this a reasonable and contactable proposition? Can you assist in making the agreement legally binding?

    • prenuplawyer says

      @Paul – Given the length of your relationship, generally a court would frown on such an agreement. However, due to the source of the funds and the fact that had they been used differently, they would not be shared assets, an agreement like you outline could be valid. To a certain extent it would depend on what other assets there are – if this would be the bulk of both of your assets, that would likely be problematic; if your partner still has other assets of his own, this agreement would be fine.

  7. My husband and I have been married for 40 years and I just found out he has been having one night stands and affairs throughout our entire marriage. He wants to get counselling and save the marriage. Can I get a post nup that says if he is caught cheating in any way that he will lose his half of our house. He is in agreement with this. All other assets would be split 50/50.

    • prenuplawyer says

      @Dawn – Sort of. Clauses relating to infidelity are not enforceable. But if both of you agree and obtain independent legal advice, the agreement can simply state that if you separate, you obtain the entire house.

  8. bridewaiting says

    I have been with my C/L since November 2011. He has a large non-dischargeable lawsuit from 2006. We want to marry but from what I am reading and researching I am also marrying this lawsuit and could be held financially responsible. Could a pre-nup protect me from this? I am not looking to protect any assets or pensions just don’t want this lawsuit on me.

    • prenuplawyer says

      @Bridewaiting – If you’re not a party to the lawsuit, you can’t be liable for any of the funds owing. So, you don’t need a prenup to protect you specifically from that.

      If your partner has a negative net worth because of the money owing from the lawsuit, that could affect the division of assets. The reason for this is because in Ontario, it is the increase in a person’s wealth during the marriage that is shared. But if a person has a negative net worth, for family law purposes, his net worth is assumed to be zero. This could be dealt with in a prenup that simply states that his net worth is what it is, and not zero.

      Also, you should really check why the lawsuit is non-dischargeable. Very few debts other than support payments are.

  9. Hi, my husband and I have been married for 10 years (living together for 12). My mother passed away 3 and a half years ago and I received a very large inheritance from the proceeds of the sale of her house. At the time my husband and I were in debt so I felt obligated to pay that off with the bank on our line of credit. We were also wanting to buy a single family home as we lived in a townhouse at the time. I also bought him a new car. Paid for a family vacation. New furniture for the new house. And the rest went on general bills and living expenses. I kept nothing separate. It made sense to put it towards helping the family. We had three young children and were struggling on his parttime income. My husband had a three year affair after we got married. We briefly went for couples counselling but nothing has changed. He has continued to act inappropriately with PORN addiction and not being truthful about his behaviour and refuses to disclose or even talk about detail his seemingly ongoing relationships with other women (coworkers ex girlfriends customers etc). It’s got so bad I’ve asked him to leave so we have just separated but he now insists he wants to work things out and has finally agreed to go to counselling. I feel he is only interested in the financial cushion in this marriage. We have three young children and I really don’t want to lose my house and end up a single mom. I’m willing to give him another chance although in my heart I feel like this man is never going to change. I would like to get a post nuptial agreement in order to protect myself and know that i would get my inheritance back if things don’t work after this last attempt at giving him another chance to get his act together. It’s not just my inheritance it’s my children’s. My husband will get his own down the road as his parents have a house. What can I do please help.

    • prenuplawyer says

      @Heidi – Sorry to hear about your situation. It’s really too complicated to deal with in a comment like this and even if you set up a consultation with a lawyer, I don’t think that there are any easy answers.

      If you’ve spent the entire inheritance on bills, paying off loans, and buying the matrimonial home, then from a family law point of view, there is no inheritance left.

      Also, you say your husband and you just separated and are now getting back together. Courts are very, very careful about post nuptial agreements signed in these circumstances, and there is a good chance something signed right now may not stand up in court.

  10. Married 5 years and wife admitted to cheating 4 years ago. The house is in my name purchased before marriage. 3 vehicles paid for and in my name. Is this cheating woman still entitled to half of my house? She has paid for half of the mortgage payments but I’d rather just call it rent. I am undecided on divorce. Could I write this house into a post nuptial? Is this something you could do with your silver package?

    • prenuplawyer says

      @Jim – Sorry to hear about your situation. This is something you will need to discuss in detail – there’s not enough information in your comment for me to answer. This is one reason why courts are cautious about post nuptial agreements – it could really be a separation agreement in disguise, or one partner may sign it out of a sense of guilt. As a practical matter, it may make sense for you to consider moving homes, as in Ontario you don’t get a deduction for a matrimonial home brought into a marriage.

  11. Husband is a recovering sex addict and we are in counselling to save our marriage. I’m a stay at home mom until our kid’s are all in school. He works full time and has a really good pension plan as well as RSP’s Is it possible to get a post nuptial to be entitled to half of his entire pension (not just what’s accumulated while married).

  12. Hi, I have been looking at possibly signing a postnup with my wife as we have had some major recent changes in our life and I would like to protect my interest and my daughters interest we have in marriage in case it leads us to divorce. Recently my wife’s daughter from her previous marriage passed away and now we are petitioning for custody of her granddaughter. So If we end up divorcing in the years ahead would I be obligated to pay child support for her granddaughter? Also I inherited money from my deceased mother recently and not knowing the inheritance rules until know used the money to pay off some of our family debt. In addition when my mother was alive she also gave me a sizeable gift to help us buy our current home. So my question is am I entitled to get this money back if we divorce? If not I believe this maybe a good time to ask for a postnup during this custody battle as my wife would more likely be agreeable to sign.

    • prenuplawyer says

      @Ron – Child support can’t be dealt with in a post nuptial agreement.

      As for inheritances and gifts, as long as the funds are not put into a matrimonial home, then they are already excluded from the division of property, even without a post nuptial agreement.

      It sounds like the inherited money you received is essentially gone, as you’ve used the funds to pay off debt. As the inheritance was recent, if your partner agrees to giving you credit for this in a post nuptial agreement, that would normally be fine.

      As for the gift, so long as the funds are in a matrimonial home, that would not be excluded from the division of property. If the funds are not in a matrimonial home, then you would get an exclusion for that. So again, if it is something your partner agrees to giving you credit for in a post nuptial agreement, that would normally be fine.

  13. Married for 1.5 years , my wife a business owner wants a marriage agreement now .
    She would like to protect her “assets , home which we reside in and business interest ” and have me sign off on it , that I have no interest.
    However, I have a pension plus another residence and will retire in a few years ,what or how do I protect my assets and interest , if the worse (a divorce ) should happen in my retirement years ,
    I would like her to remain the beneficiary ,but only in a marriage commitment ?
    My employer does have a legal options waivers ,however they tell me that upon retirement if she is listed as beneficiary it is binding!

    We are seeing a lawyer about our wills and now this marriage agreement .

    Can one lawyer represent both of us ?

    I’m looking for opinions and options and guidance ! : )

    • prenuplawyer says

      @Kurt – It is really going to depend on each of your financial situations, and also what has happened financially in your 1.5 years of marriage. But it could be she keeps the business and home, while you keep your pension and second residence may be fair in your circumstances, and that is certainly worth exploring with a lawyer.

      Regarding the beneficiary designation for your pension, that is something that would vary by individual plan. Some are revocable and some are irrevocable. If the beneficiary is revocable, you may even be able to deal with the issue through your will. Again, this is something where you’d need to take your pension booklet to a lawyer to review.

      No, a lawyer can’t represent both of you, even if both of you agree on everything.

  14. Hi. My husband was recently caught in a messy infidelity situation which I have full proof of. Is there any way I can have some type of document stating that all assets go to me and the children if he does it again. Even if he agreed sign all papers and cooperate.

  15. i am married for 14 years now. My husband found out i had a affair.Now as garanty that i will not leave him he want me to sign a postnup saying that if there a divorce i leave or him i will give him the house and his buisness is it legal and in court is it valuable this agreement?

    • prenuplawyer says

      @Annie – If you sign such an agreement it could be legally binding, but from the little you’ve told me I don’t think any lawyer would let you sign. There are better ways of working out marital issues than a post nuptial agreement.

      Also, as mentioned in this article, courts tend to scrutinize post nuptial agreements a lot more carefully than prenuptial agreements. One reason for this is to ensure that they are not really separation agreements in disguise. So, for instance, your husband could never get what he is asking for in a separation agreement. But one way around that would be to get you to sign a post nuptial agreement in which he gets this, and then he ends the relationship a few months later.

  16. My marriage has been shakey at times and not always truthful. I really don’t know where it is going at the moment. I want to start a business but I’m scared to start anything when I feel like if I do that I could lose it. It’s hurting my relationship just not being able to push myself further with a new venture. Is it possible to do up a postnup where she would be completely cut off from the business? I am the only income in my household and I plan to continue working while building a company on the side.

    • prenuplawyer says

      @Ray – It may be possible, if your wife agrees to it, and also depending on what the rest of your financial situation and her financial situation looks like. This isn’t really a question that can be answered in the abstract though – you’d need to speak with a lawyer and go through all the details of your situation to know the answer for sure.

  17. Hi, my wife and I are married for 8 years, recently we signed a separation agreement and now we want to get back together. She held properties in trust of her parents in another country and her parents want us to sign an agreement that I cannot touch or think about these assets in the case if we want to get separated in the future again. Can we sign an agreement that I would not do any of that and that I will give my wife half of what we own together, and she keeps what’s under her name and I keep what’s under mine? Or is it possible that I sign alone and give them a copy of the agreement to ensure her and her parents that I would not be any threat to their assets?

    • prenuplawyer says

      @Mark – First things first, you should check what your separation agreement says. Often the agreement will deal with what happens if you and your spouse get back together.

      Assuming that in your separation agreement you and your wife split up your assets satisfactorily and then you get back together, then in a post nuptial agreement you can put pretty much whatever you and your spouse agree to. A fairly common scenario is that you keep what is yours, your spouse keeps what is hers, including any properties she holds in trust, and any joint assets are shared.

    • My spouse and I have a home with an attached home equity line of credit. I’m assuming we would NOT need a postnup if we ever separated for this as I’m guessing the equity from the home would be used to pay the line of credit balance before equal 50/50 monetary division of the home, is this correct? Both our names are on the home and the attached line of credit.
      We got the line of credit to pay off spouses debts (I was very reluctant but gave in) with the promise from spouse that they would not accumulate any more debts. Spouse has now accumulated more debt on their personal credit card. They were not truthful and I now feel the need to protect myself and children in the event we ever seperate/divorce in the future. Would I be responsible to pay for their personally accumulated debt? Would a postnuptual agreement cover that? What about any RRSPs or pensions (we both have one). I’d like to keep those to ourselves. I don’t want theirs. I don’t want them having mine (in the case of a seperation). Our children also receive monthly child tax credit and 1 currently receives disability. I have savings accounts set up for them in their names and the funds are deposited there. Can I keep spouse from taking those funds for themself? If a postnup would be needed, would the bronze package cover these concerns?
      Thank you

      • prenuplawyer says

        @Dee – Your situation is fairly complicated, so you should really speak with a lawyer in depth.

        If you are married the equity in the home is going to be shared equally, so there is not really an issue there.

        Regarding your spouse’s personal debts, the situation is more complicated. You are not personally responsible for his debts. However, the debts will reduce his net family property, which would correspondingly reduce any division of payment you may be entitled to. You can argue for an unequal division of property based on these debts, but a lot will depend on what the debts were incurred for, and in any event, that is a complex and expensive argument to make.

        A postnuptial agreement could protect you from further personal debt incurred by your spouse.

        In any event, the bronze package is not suitable for your situation, nor for any postnuptial agreement. Given that you are married, both you and your spouse have various family law rights and obligations that have already crystallized, so it is important that both of you seek (separate) legal counsel.

  18. My wife and I would like to nullify our prenup that was developed with the help of a lawyer. Without going into detail, the financial circumstances that prompted the prenup are no longer extant. We are in complete agreement that it should be canceled. How do we go about doing this? Hopefully, there is a simple and cost effective method, but somehow I think it means a return to the lawyer.

    • prenuplawyer says

      @Gordon – You do need to enter into a new agreement that revokes your prenup, and this agreement needs to be signed and witnessed by both of you. There is no requirement to use lawyers (although that’s always recommended). If you’d like an agreement you can use, then contact me and I can provide one for a nominal fee.

  19. Hi, my husband and I married 1.5y ago, but have been together for 10y, living together for 8 of those years. He had a great career financially up until a few years ago. Six months after I started in my career he quit his job. That was five years ago now. He has had numerous short term jobs since, with long periods of unemployment between. He owned the first house we lived in, which he sold the year he quit his job. He has since spent that money and racked up significant credit card and line of credit debt. In the meantime, I purchased the house we live in currently, and make all payments associated with the house, as well as all household bills. I have also been contributing to a pension through work and recently paid off all of my existing debt (school loans and line of credit). At this point I have no concerns about our marriage, but would like to protect myself should things change. Is it possible/legal to enter a postnup where our finances (current and future) will remain separated, and where the house cannot be separated (unless he begins contributing, and then would be split proportionately)? Thanks.

    • prenuplawyer says

      @Liz – Sort of yes. You could enter into a post nuptial agreement that would protect your assets on a going forward basis. A lawyer would need to look at what’s happened in the past in more detail, but from the brief summary you’ve given me, it sounds like what has happened in the past regarding your finances is pretty much water under the bridge.

  20. My Husband and I have been married for 5 months (lived together in our home for 4 years). Two days ago I found out that he has accumulated more than 45k in debt in the past two years that I didn’t know about and also drained our savings of appx. 15k. This debt will sink us financially. My question is, I am to receive an inheritance from my grandmother very soon in the amount of appx. 50k. Could we write up a postnup stating that if I use this money to pay off this debt now that if we ever divorce that from the sale of the house I would receive these funds back?

    • prenuplawyer says

      @DC – Yes you can, and that makes a lot of sense, as if you use the inheritance to pay off his debts, you’ve essentially lost it from a family law point of view. You should also speak with a lawyer about incorporating other provisions to protect you from future debts of your husband.

  21. Very good information. This has clear my thoughts on post marital. I will keep all this points into my consideration.

  22. Hello,

    My wife’s sister is going through a divorce and I’m seeing first hand the impact a nasty divorce can have on assets.

    My question is around a recent home purchase, my parents gave us a home that I grew up in for roughly 50% less than market value and the home is in my name only. My parents have owned this home for 30 years before it was sold to me. This was an early inheritance present from my parents so we could move out of our small apartment and into a home as we have 3 kids. So we ended up tearing down the home and building a new home on the property soon after receiving the home. My question is, because this was a partial gift, is the portion that is a gift off limits in a divorce? Could I draft this into a postnup agreement? Also, if my wife agrees to certain terms in a postnup and signs up for it, does this mean that the postnup cannot be contested at a later date? We are not thinking of getting a divorce and have been married for 7 years.


    • prenuplawyer says

      @Mike – Gifts and inheritances are excluded from the division of property, unless they are in use as a matrimonial home. So, in your situation you would need a post nuptial agreement to protect the house. Ideally, this would have been done prior to receiving the house (not meant as a criticism, just advice for future readers), but if your wife agrees, it can still be done. As mentioned several times above, it is really important that she receive independent legal advice in this situation. If for some reason she refuses to sign a post nuptial agreement, the other alternative is to move out of the home – then it is no longer a matrimonial home (obviously, less practical).

  23. Hi .. Me and my husband have been married for 17 years during which we started a business that is under his name only. We do have other assets that are paid off and some are only under his name. When I asked him to add my name in the business and other assets he said no. Due to all this it led me to file for divorce. At this point now he is willing to add my name to assets and not the business. My question is if it’s possible to get a post nuptial agreement stating that in future I will not be liable for any business debts if divorce is to happen. But at the same time have my interests in the business. And in someway im only liable for debts that are signed by both and not the ones he takes without my signatures.

    Thank you

    • prenuplawyer says

      @Deekay – In Ontario, it is the *value* of your assets and debts that is divided, and not the assets and debts themselves. So, as a practical matter, it does not normally make a difference to the division of property whether your name is on the business or any other assets.

      Regarding debts, you are not liable for any debts unless you have cosigned or guaranteed them. Obviously, if someone is running up debts, that would affect how property is divided, but I’m not sure that is what is happening in your situation.

  24. Hello:

    If I been married for two years and my husband have insisted in paying my phone bill and my car insurance and at the time of marriage we did a postnuptial agreement to separate assets. Can my postnuptial agreement be invalidated if he is paying those bills.

    • prenuplawyer says

      @Millie – No. That is not a ground for invalidating an agreement. In fact, your agreement may even state that if one of you contributes, either financially or in other ways, to the other’s property, they gain no interest in it.

  25. Good afternoon.

    My husband and I have been married for 7 months now and I would like to know if you recommend a postnuptial agreement for us. The reason why I would like to get one is because my husband has a daughter from a previous relationship. I in no form or way want to be obligated to pay any debt my husband has with childsupport. I dont want any of my income touched my his daughter or the daughters mother. I understand is complicated to do so but I also understand I could possibly have taxes taken away from me because we file taxes together.

    • prenuplawyer says

      @Ana – A prenuptial or post nuptial agreement only affects rights between you and your partner, not you and third parties. So, having a prenuptial or post nuptial agreement will not make a difference in your situation.

      That being said, normally your income and assets have very little, if any, relevance to your partner’s child support obligations. Child support would normally be based solely on his income, which really has nothing to do with you.

  26. My husband and I have been married for 6 minths. I have come into this marriage with a house. He comes with no assets. I want to protect my assets. We have never lived in this house together. Can I enter into a post nup saying that he is not to profit from the sale of this house which I plan to do this summer. Also when I sell this house is it required that he sign on closing as his name not on the deed and as I mentioned above he has never lived on this house?

    • prenuplawyer says

      @Simone – Yes, you could enter into a post nuptial agreement that states that.

      Note that even without the post nuptial agreement, you would get credit for bringing the house into the marriage, so depending on what you are trying to achieve, an agreement may not even be necessary.

      You don’t need spousal consent to sell the house unless it is a matrimonial home, which it isn’t if your husband has never lived there.

  27. Hello,

    I bought a home for each of my daughter’s who still live with me and mortgaged my home for these purchases which are rented at this time. Both me and my husband are named on the property as 1% each. One of my daughter’s is getting married and I want to protect this home to an extent in case of a divorce. I have written up a prenup with the following clause and want to know if this makes any sense.

    IN CASE OF A SEPERATION/DIVORCE (Name of person) will receive 50% of the difference of the property valued as of June 3rd 2017 being the date of their marriage to the termination date for (property’s address) if used as a matrimonial residence.

    Please let me know if this is the correct way of putting it.

    Thank you.

    • prenuplawyer says

      @Connie – The situation is a bit more complicated than that. I know I’m biased in this regard, but I’d strongly recommend getting the agreement drafted by a lawyer. The cost of an agreement is nominal in comparison to the value of the house you are trying to protect.

  28. An agreement that will provide for the assignation of marital property at the time of death of one spouse. These agreements typically have the surviving spouse waiving any rights to property they would have had the right to inherit under a will or statutory scheme.

  29. Hi there,

    I signed a prenup with my partner and we moved to california a year after we got married. I have questions about it. We also signed the second prenup in BC after we got married and added a list of separate properties. So are both of them still valid? So during the marriage, Can my partner creditors can legaly force sale one of separate properties listed on the prenup? Does the prenup has to be notarized in BC to be enforceable in the court of law? Would you mind to let me know whether I have enough protection from my partner creditors on my separate properties?

    • prenuplawyer says

      @Ruben – Your question is too specific to be answered here – a lawyer would need to look at the specific wording in your agreements. Typically, a prenup will state that it revokes any prior agreements. You will need to check for that wording in your second agreement; however, it may not be there if there was an intention that both agreements be valid.

      As well, unless you’ve co-signed or guaranteed a loan, you are not responsible for your partner’s loan. So, your partner’s creditors cannot come after property that is in your name, unless they are claiming that the property was transferred to you by your partner to defeat creditors.

  30. Hello,
    I have caught my husband cheating and wanted to get post nap agreement which puts condition that if he ever caught again he should not have any interest in matrimonial home or my assets in my name. Also, I would have full custody of kids. Am I allow to do that or you would suggest something else.
    Thank you

    • prenuplawyer says

      @Mary – Sorry to hear about your situation. Canadian family law is no fault – an agreement where certain things happened if one party committed adultery would likely be void. It’s not really a situation that should be dealt with through legal means.

  31. I was married last july. Its my second marriage. I have 2 kids from my first marriage. My new husband lives in my house now. Someone told me that because we are married if anything happened to me, the house would go to him and not my kids(13 and 16)….I didn’t know that and would like to perhaps create a post nup setting this out. I don’t want to spend a lot of money doing this but I just want to make sure my kids are protected. Is this doable?

    • prenuplawyer says

      @Angie – Yes, provided that your husband agrees, you can deal with this in a post nup. A post nup deals with when your relationship ends, and it can end by either separation or one of you passing away. Without such an agreement, if you separate, you do not receive any credit for bringing the house into the marriage. As well, your husband has certain rights to your estate. In your post nup, he can give up these rights.

  32. Here’s mine then 🙂

    We fall under the common example you listed above. Husband is being brought into the family business which is worth a fair bit. Father in law wants me to sign an an agreement basically guaranteeing the company will stay in the family/bloodline.

    I don’t have any problem with this in general as the company is not in my career field or expertise. I do however have a very nice work pension I’ve been contributing to throughout my career, including a current stint as the sole breadwinner while he gets an MBA for this future company work.

    Can I ‘trade’ any spousal claim on company assets for him not receiving any portion of my work pension or RRSP savings? His portion of the company should be worth several times what the pension will be.

    All being said we have no plans to divorce and I’m irritated at my father in law for making this a thing we have to work our way through.

  33. My husband and I have been married for 20 years – he is Canadian and I’m American – we were Married in Connecticut USA … 6 months after we were married his father threatened that is I didn’t Sign a post-nup that he would dis-inherit his son, my new husband. It was awful, I never wanted to sign because we didn’t have much at the time and it was too stressful. I cried while signing it… it was a one page agreement that said I get nothing if we divorce ( from the inheritance ) I would only get what my husband would make from other sources – … well, his father died and left him so much money he never had to work – we have had a life of extreme wealth, many houses, assets etc he now wants a divorce we have 3 children in Private schools in Toronto … I gave up my career as a Professor to raise them , and to live in Canada … will I have nothing ? We were married in CT and got our marriage license in CT – does that matter ?

  34. My husband and I have been married for two years. I put down $140,000 on our home that we share we a joint family of 5 kids (2 are mine from a previous marriage, and 3 are his from a previous marriage). We have all the kids full time. We both make the same amount of money and work full time. Because of a previous consumer proposal he had, our home was put in my name with my mother as a co-signer. A year ago, my husband started a side business. It is doing well, but just managing. Recently, his ex-wife started pursuing full custody rights, with full child support and spousal support, even though this was all denied 4 years ago due to her mental illness. We are concerned that if she convinces a court to side in her favour, we could lose the house, and the ability to care for 5 kids full time as we have little saved. We both fully agree to put the house in my name and separate it, so his ex-wife can’t leverage it in court. My husband’s lawyer recommended a postnup. Since I contributed the entire down payment, could this be legally upheld in a prenup? We are ready to sign today.

    Thank you,


    • prenuplawyer says

      @Jen – I can’t see how entering into a postnup will impact your husband’s custody, child support, or spousal support obligations to his ex-wife.

      If you separate or pass away, then the matrimonial home would be shared equally, and it may well make sense to enter into an agreement because of that. However, this is unrelated to anything regarding your husband’s ex-wife.

  35. On another note, he is in his second consumer proposal. He wants to financially separate anything that could effect our home and family from his ex.

  36. I am divorced, remarried, and have two adult children from the previous marriage. My current wife has a rental property she bought, during our marriage, with her own money before the marriage. Finances of the property have not been co-mingled.
    The value of the rental unit has increased, and we intend to use the proceeds from the sale of this property to purchase our home together. We want to keep the proceeds from the sale as hers only and excluded from any future property settlement and my estate.
    We wish to execute a postnup and believe that it would be consistent with the laws of Ontario and provide the protection she needs. Are we correct?
    Would the postnup also protect her assets if my grown up kids were to file a claim against me or my estate, which may include her contributions during the marriage? If not, do I need a will to reflect what they may or may not be entitled to?

    • prenuplawyer says

      @Budd – Yes, a postnup can do all of that.

      Regarding your estates, you would need both a postnup and wills. In the postnup you would each release the other from any marital rights you have to the other’s estate. Then in the wills you would set out how you want your assets to be distributed.

      • I just found out my wife has had a 1.5 year affair. We both want to work on the relationship but know it will be difficult. We have been together since high school and have built all assets together. I have a pension and she has RRSPs, some which I contribute to. Can we enter a postnup stating that if we split all assets house, boats, cars etc will be split equally but I keep 100% pension and she keeps 100% her RRSP? The pension is higher than her investments but I’m unsure by how much. We have 2 children that we would share custody of and split expenses equally.

        • prenuplawyer says

          @Ty – Sorry to hear. Yes, you could enter into an agreement stating that. The issue in your case is going to be more one of process – e.g. she only entered the agreement under duress. It would be important that both of you have lawyers for this and discuss the situation thoroughly with your lawyers.

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