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It’s becoming more common for couples to explore the idea of entering into a pre-nuptial agreement: a domestic contract that is entered into prior to the marriage. However, many couples still see getting a pre-nuptial agreement as setting the marriage up for failure as you are basically planning what is going to happen upon the breakdown of the marriage.  

Others may feel as though this type of agreement is only for people who are very wealthy and that the agreement is not suited for the majority of people. Neither of these statements are true – in fact, the divorce rate is actually lower for couples who have a prenuptial agreement than for those who do not. Here’s what you need to know about pre-nuptial agreements. 

What is a pre-nuptial agreement?

A prenuptial agreement (also called a domestic contract) is a contract between two (2) people – who are engaged to be married– that can outline the following:

  1. Each partner’s roles and responsibilities during the marriage;
  2. How assets will be divided in the event of divorce or death;
  3. Spousal support obligations; and/or
  4. How inheritances will be treated during the marriage.

Who needs a pre-nuptial agreement?

There are some situations where a pre-nuptial agreement is highly recommended, but, ultimately, these agreements can be used by anyone who wants to protect their financial future

For couples where one, or both, of the people, have been married before, it can make sense because they have experience with what divorce can look like – especially if their separation/divorce was bitter. In these cases, people may have first-hand knowledge of how expensive it can be to go through a divorce, and they want to protect their financial future. 

Additionally, couples who have children from previous relationships may want to explore a pre-nuptial agreement to make arrangements for their children in the event of death. 

Finally, if one partner is much wealthier than the other (or they have a wealthy family and expect a significant inheritance), they might want to consider a pre-nuptial agreement. 

When do you start the pre-nuptial agreement process?

Talking about finances and a pre-nuptial agreement should happen before you get married. Financial disclosure will need to be exchanged for the agreement, so it is best to seek legal advice well in advance of your nuptials. 

Can you set up terms for child support and custody in a pre-nuptial agreement?

Pre-nuptial agreements that contain provisions on child support and custody issues, may be deemed unenforceable by the Courts. This is because the Ontario Courts will make decisions that protect the best interests of the child(ren) involved.

Other issues that cannot be predetermined by a pre-nuptial agreement include provisions that give more than half a pension to one spouse, or chastity agreements that prevent one partner from re-marrying or cohabitating with a new partner. 

Contact Gelman & Associates today

If you are engaged to be married and are interested in learning more about pre-nuptial agreements and whether this is the right option for you, contact us today to speak to a family lawyer.

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