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Experienced, Results-Oriented, Family Law Lawyers Representing Clients During the Negotiation, Drafting and Enforcement of Marriage Contracts

What is a Marriage Contract?

A marriage contract is a voluntary agreement between two parties who are planning to marry or are already married, which sets out how certain matters will be dealt with should the marriage break down. This type of agreement is most often entered into prior to the marriage (referred to as a prenuptial agreement or ‘prenup’) and is a good idea for couples who want to outline, in advance, what will happen to each partner’s assets and finances in the event of a divorce.

A similar contract can also be entered into after a couple has been married (increasingly referred to as a postnuptial agreement or ‘postnup’). These types of contracts can be a bit more complex as there is little leverage after the marriage has taken place and there are already shared assets to consider, but they are feasible so long as the couple can agree to terms. Both types of marriage contracts can be entered into, and are legally enforceable, for both same-sex marriages and opposite-sex marriages. Unmarried individuals have the option of drawing up a similar agreement, often referred to as a cohabitation agreement.

What is Included in Marriage Contract?

Typically, a marriage contract is drawn up by a family law lawyer in advance of a marriage, and outlines an agreement on matters such as:

What Cannot be Included in a Marriage Contract?

  • Child custody and access terms: Child custody and access is determined by provisions within the Family Law Act and must be centred around the best interests for the child. Attempts to circumnavigate the rules and procedures via a marriage contract will not be enforceable in court.
  • Rights to the matrimonial home: Under the Family Law Act, both parties to a marriage have an equal right to live in the matrimonial home, and this cannot be altered with an agreement to the contrary via a marriage contract. Both parties will retain equal rights to remain in the home until a separation agreement signed by both parties or court order for exclusive possession is obtained.

Can a Marriage Contract be Set Aside?

Marriage contracts can be set aside if certain factors are present. If any of the following apply, it may be possible to have the agreement invalidated in court:

  • One of the parties was placed under pressure or duress in order to sign;
  • The contract is found to be unconscionable; or
  • There was fraud or misrepresentation at the time of signing (such as failure to properly disclose financial assets or debts).

If you perceive a reason that your marriage contract should be voided, you must apply to the court for an order to set the agreement aside. It is important to note that courts will rarely intervene unless one of the above factors is present. Further, if only one aspect of the agreement is found to be unfair, a judge may only set aside that specific term, allowing the rest of the contract to stand. Before proceeding with a challenge to a domestic contract in court, you should seek experienced legal advice to review the agreement and advise you of your options. It is also important to note that there is a 2-year limitation period for setting aside a marriage contract, as noted in the Ontario decision F.K. v. E.A., 2019 ONSC 3707. The clock on the limitation period begins to run once a party discovers that the contract is unfair and that a legal proceeding is the most appropriate way to resolve the issue.

Enforcing a Marriage Contract

A domestic contract filed with the court will generally be enforced as written unless challenged by one of the parties, in which case the court will review the contents and determine if any of the factors in the section above apply. Further, if any of the terms contained in the agreement are found to violate the law, such as with respect to child custody or the matrimonial home, those terms will likely be excised from the agreement.

If none of the above applies, it is likely that the agreement will be enforced with the same veracity as a court order. Given this, it is extremely important to have any domestic contract thoroughly reviewed by an experienced family law lawyer before signing, in order to ensure your interests are fully protected.

Contact Our Family Law Lawyers for Assistance in Drafting Marriage Contract

At Gelman & Associates, we can help you draft a marriage contract, or enforce a pre-existing agreement. Contact us today to learn how a marriage contract drawn up by experienced family law lawyers can help protect your rights and assets upon separation.

With six offices conveniently located throughout Aurora, Barrie, Downtown Toronto, Mississauga North York and Scarborough, we are easily accessible by transit and off-highway. Call us at (416) 736-0200 or  1-844-736-0200 or contact us online for a confidential initial consultation.

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