A marriage contract is a domestic contract that allows two people who are married, or who intend to marry, to agree in advance on certain rights and obligations during their marriage, if they separate, divorce, or if one spouse dies.
In Ontario, marriage contracts are governed by the Family Law Act. Section 52 allows spouses or future spouses to make agreements concerning matters such as property ownership and division, spousal support, and other financial arrangements.
A marriage contract entered into before the wedding is commonly called a prenuptial agreement or “prenup.” Married spouses can also enter into a marriage contract after the wedding, which is often called a postnuptial agreement.
At Gelman & Associates, our Toronto prenuptial agreement lawyers help clients draft, negotiate, review, and understand marriage contracts based on their individual circumstances.
Key Takeaways About Marriage Contracts In Ontario
- A marriage contract is an agreement between people who are married or intend to marry.
- It can address property ownership, division of property, spousal support, and other financial arrangements.
- A marriage contract can be made before or after the wedding.
- A contract must be in writing, signed by the parties, and witnessed to meet Ontario’s basic formal requirements.
- Marriage contracts cannot override statutory rights relating to possession of the matrimonial home.
- They cannot finally determine parenting time or decision-making responsibility.
- Financial disclosure and independent legal advice can be important when preparing an agreement.
- A court may set aside all or part of a marriage contract in certain circumstances.
What Is A Marriage Contract?
Under section 52 of Ontario’s Family Law Act, two people who are married or intend to marry may enter into an agreement dealing with their rights and obligations during the marriage, on separation, on divorce or annulment, or on death.
The agreement may address matters including:
- Ownership of property
- Division of property
- Spousal support
- Financial responsibilities
- Other matters concerning the settlement of the spouses’ affairs
The legislation refers to this agreement as a marriage contract.
A prenup is therefore not a completely different type of Ontario agreement. It is commonly used terminology for a marriage contract prepared before the marriage takes place.
Is Marriage A Contract In Ontario?
Marriage itself and a marriage contract are not the same thing. Marriage creates a legal status and legal obligations, while a marriage contract is an optional domestic agreement between the spouses.
Marriage is a legal relationship that creates rights and obligations under federal and provincial law. Those rights can affect property, support, the matrimonial home, inheritance, and other issues.
A marriage contract is a separate agreement that allows spouses to modify or clarify some of those financial rights and obligations, within the limits established by Ontario law.
In other words, getting married does not mean the spouses have signed a marriage contract. In fact, if a couple gets married, they do not necessarily need to draft and sign a marriage contract at any point if they do not wish to do so.
Without a marriage contract, the ordinary rules of Ontario family law generally apply if the relationship ends.
What Is In A Marriage Contract?
The contents of a marriage contract depend on the couple’s circumstances and preferences. Common provisions included in Ontario marriage contracts may address the following.
Property Ownership in Marriage Contracts
A marriage contract can identify property that each spouse already owns and clarify how particular assets will be treated if the marriage ends.
That may include:
- Real estate
- Investments
- Savings
- Business interests
- Pensions
- Valuable personal property
- Family-owned assets
Couples with significant assets may also want advice from our Toronto property division lawyers.
Division Of Property
Ontario generally applies a statutory equalization regime to married spouses when they separate. This is known as the equalization of net family property.
A marriage contract can alter how certain property rights will be handled, subject to statutory limitations.
For example, the spouses may agree that particular assets will remain separate or establish how specific property will be valued or divided if their marriage ends.
Marriage Contracts & Spousal Support
A marriage contract may address spousal support.
Inside the document, spouses can agree on support obligations, limitations, or waivers, although the enforceability of a particular term can depend on the circumstances in which the agreement was made and the law applicable when the provision is later considered.
Addressing Debts in Marriage Contracts
An agreement can also clarify responsibility for existing or future debts between the spouses.
This can be particularly important where one person enters the marriage with significant liabilities or operates a business.
Businesses And Professional Interests
Business owners may use a marriage contract to address how a company, professional practice, shares, or future business growth will be treated if the marriage ends.
Our family lawyers for business owners and entrepreneurs can advise on family-law issues involving business interests.
Inheritances And Family Wealth
A marriage contract can also form part of a broader strategy for preserving inherited property, family gifts, or intergenerational wealth.
Clients dealing with significant inherited assets may also want to review their legal rights and obligations with our Toronto inheritance lawyers prior to or after their marriage.
What Cannot Be Included In A Marriage Contract?
Ontario law limits what a marriage contract can accomplish. It is important to understand the limitations of what a marriage contract cannot do in order to protect your and your partner’s rights.
Parenting Time And Decision-Making Responsibility
A marriage contract cannot finally determine parenting time or decision-making responsibility for children.
Section 52 of the Family Law Act expressly excludes these matters from what spouses may determine through a marriage contract.
Parenting arrangements must ultimately be assessed according to the child’s best interests. If your marriage has ended and you share children with a former spouse, our Toronto child custody lawyers can help you navigate your legal rights.
Matrimonial Home Possession Rights
A marriage contract also cannot limit the statutory possessory rights spouses receive under Part II of the Family Law Act concerning the matrimonial home.
That does not mean a marriage contract is irrelevant to real estate or property planning. It means that the special statutory rights connected with possession of the matrimonial home cannot simply be contracted away.
Child Support
Spouses should not rely on a marriage contract as a way to permanently eliminate a child’s right to appropriate support.
Child support remains subject to applicable legislation and the child’s entitlement.
For more information, speak with our Toronto child support lawyers.
What Are The Benefits Of A Marriage Contract?
Marriage contracts are sometimes associated only with very wealthy couples, but their usefulness is broader than that. A marriage contract, whether it is signed before or during a marriage, can provide many benefits for all types of couples.
Greater Financial Certainty
One of the main benefits of a marriage contract in Ontario is clarity.
A properly prepared agreement can help both spouses understand in advance how certain financial issues will be handled if they separate.
This can reduce uncertainty around property ownership, support, debts, or business interests.
Protection Of Particular Assets
A marriage contract may help spouses define how specific assets will be treated.
This can be important where one spouse owns:
- A business
- Investment property
- Significant savings
- A family cottage
- Shares in a private corporation
- Property intended for children from a previous relationship
Planning For A Second Marriage
Marriage contracts can be especially useful in second marriages and blended families.
A spouse may want to balance financial security for a new partner with plans to preserve certain assets for children from an earlier relationship.
For more detail, see our guide to prenuptial agreements for second marriages and blended families.
Clarifying Spousal Support Expectations
Spouses may also want to establish expectations concerning future support.
This can be useful where there is a large difference in income or one spouse expects to make significant career or family sacrifices during the marriage.
Reducing Future Disputes
A marriage contract cannot guarantee that litigation will never occur. However, clear terms may reduce the number of issues that need to be negotiated or litigated if the relationship ends.
Coordinating Family Law And Estate Planning
The agreement can also be considered alongside wills and other estate-planning documents.
Where spouses have blended families, businesses, or significant assets, coordinated estate planning can help reduce inconsistent instructions between documents.
What Makes A Marriage Contract Legally Enforceable In Ontario?
Ontario’s Family Law Act establishes basic formal requirements.
Section 55 provides that a domestic contract is unenforceable unless it is:
- In writing
- Signed by the parties
- Witnessed
Those requirements are essential, but they are not the end of the analysis.
The circumstances surrounding negotiation and signing can also become important if the agreement is later challenged.
Why Independent Legal Advice Matters for Ontario Marriage Contracts
Each spouse should consider obtaining advice from their own lawyer before signing a marriage contract.
Independent legal advice gives each person an opportunity to:
- Understand the agreement
- Learn how it changes their legal position
- Ask questions
- Consider alternative terms
- Understand what rights they may be giving up
Independent legal advice is not one of the three basic formalities listed in section 55 to make a contract enforceable, but it can be an important safeguard when determining whether the parties understood the nature and consequences of the agreement should litigation arise later.
Can A Marriage Contract Be Set Aside?
In some cases, yes. A marriage contract is not automatically immune from challenge simply because it was signed and witnessed.
Ontario’s Family Law Act allows a court in certain circumstances to set aside all or part of a domestic contract.
Issues may include:
- Significant financial non-disclosure
- A party failing to understand the nature or consequences of the agreement
- Duress
- Fraud
- Other grounds recognized under contract law
Whether a specific agreement can be successfully challenged depends on the facts of the case.
Anyone concerned about an existing agreement should obtain legal advice rather than assuming the contract is automatically enforceable or automatically invalid.
Why Financial Disclosure Matters for Marriage Contracts
A spouse entering a marriage contract should have all relevant, meaningful information about the other person’s financial circumstances before deciding whether to accept the agreement.
Relevant disclosure may include:
- Income
- Real estate
- Investments
- Corporate interests
- Pensions
- Debts
- And other significant liabilities or assets
A failure to disclose significant assets, debts, or liabilities can become a basis for asking a court to set aside all or part of a domestic contract. In other words, if full financial disclosure was not completed at the time that the marriage contract was signed, it may be voidable in the future.
Proper financial disclosure can therefore be an important part of the process.
What Are Common Marriage Contract Mistakes?
Although marriage contracts can be important documents for any couple in a serious relationship, there are certain pitfalls that should be avoided.
Signing Without Full Financial Disclosure
An agreement can become more vulnerable to challenge where important assets, debts, or liabilities were not properly disclosed.
Signing Without Understanding The Agreement
Each spouse should understand both the words in the contract and the practical effect those provisions may have.
Signing Under Pressure
Last-minute negotiations immediately before a wedding can create avoidable disputes about whether a party had a meaningful opportunity to consider the agreement.
Couples should begin the process early enough for disclosure, review, legal advice, and negotiation.
Assuming The Contract Can Decide Parenting Issues
Parenting arrangements cannot simply be predetermined through a marriage contract.
Ignoring The Matrimonial Home Rules
Ontario gives the matrimonial home special statutory treatment. Couples should obtain specific advice before assuming a marriage contract can override all rights connected with a family residence.
Using The Same Lawyer For Both Spouses
One lawyer cannot provide independent legal advice to both parties where their interests may differ. Each spouse should consider separate representation when drafting a legal agreement.
Prenup Vs. Marriage Contract Vs. Postnup
These terms are related but can create confusion.
- A marriage contract is the statutory Ontario term for an agreement between people who are married or intend to marry.
- A prenuptial agreement or prenup is commonly used to describe a marriage contract entered into before the wedding.
- A postnuptial agreement or postnup generally refers to a marriage contract entered into after the spouses are already married.
For broader information about drafting and enforcing these agreements, visit our Toronto prenuptial agreement lawyers page.
Marriage Contract Vs. Cohabitation Agreement
A marriage contract is for people who are married or intend to marry.
A cohabitation agreement is generally used by people who are living together, or intend to live together, and are not married to one another.
Ontario’s Family Law Act also provides that if parties to a cohabitation agreement later marry each other, the agreement is generally deemed to become a marriage contract.
Frequently Asked Questions About Marriage Contracts In Ontario
What Is A Marriage Contract?
A marriage contract is a domestic contract between two people who are married or intend to marry. It can address property, support, and other financial rights and obligations permitted by Ontario law.
What Is In A Marriage Contract?
A marriage contract can include provisions concerning property ownership, division of property, spousal support, debts, business interests, inheritances, and other financial arrangements.
Is Marriage A Contract In Ontario?
Marriage itself creates a legal relationship and statutory rights and obligations. A marriage contract is a separate optional agreement that can modify or clarify some of those financial rights within legal limits.
Does Every Married Couple Have A Marriage Contract?
No. If spouses do not make a marriage contract, Ontario’s ordinary family-law rules generally apply to property, support, and other matters when the relationship ends.
Can You Make A Marriage Contract After The Wedding?
Yes. People who are already married may enter into a marriage contract. This is often called a postnuptial agreement.
Do Both Spouses Need Their Own Lawyer?
Ontario’s basic formal requirements do not expressly state that both people must have independent lawyers. However, obtaining separate independent legal advice can help each spouse understand the agreement and reduce the risk of later disputes about understanding or pressure.
Can A Marriage Contract Be Changed?
Spouses can agree to amend or rescind a domestic contract, but Ontario’s Family Law Act requires an agreement to amend or rescind a domestic contract to satisfy the applicable formal requirements, including writing, signatures, and witnessing.
Speak With A Toronto Marriage Contract Lawyer Today
A marriage contract can provide greater clarity about property, support, debts, businesses, inheritances, and other financial issues, but careful preparation matters.
At Gelman & Associates, our family lawyers assist clients with:
- Prenuptial agreements
- Postnuptial agreements
- Marriage contracts
- Financial disclosure
- Independent legal advice
- Reviewing proposed agreements
- Amending existing agreements
- Enforcing or challenging domestic contracts
For detailed information about drafting or reviewing an agreement, visit our Toronto prenuptial agreement lawyers page.
To discuss your circumstances with Gelman & Associates, call 1-844-736-0200 or contact us online.
