Legally defined as a marriage contract, this kind of document goes by several names including an antenuptial agreement, a premarital agreement, or simply a “prenupt” or “prenup.” As “prenup” is the most common term used, we will use that term on this page.
These contracts are governed by Ontario’s Family Law Act and are entered into by two people who are either married or intend to marry each other.
This domestic contract is one that is entered into by two people who are either married to each other or who intend to marry each other.
A prenup is always a good idea
Before the marriage is the best time to develop a prenup. This is when they are more likely to fair as this is when spouses have a positive out look on the future.
The prenup content is determined by law
To be valid, a prenup must follow certain criteria. These criteria, not least of which is that the prenup be in writing, signed and witnessed, are laid out in Ontario’s Family Law Act. Further,
- it must be based on complete disclosure of both partners’ respective assets, debts and other liabilities;
- each party must have had independent legal representation during the development of the agreement;
- there must be “equal bargaining power” between the parties. This means there can be no fraud, undue influence, duress or unconscionable circumstances between them;
- the prenup must be clear and accurate; and
- the prenup must cover only those topics and matters that are specifically permitted under the Act.
If these criteria are met, it can generally be assumed that the prenup will be valid and enforceable—and most likely to be upheld in a court of law, even if the circumstances have changed considerably.
What the prenup can’t cover
Under the provisions of the Family Law Act, spouses cannot enter into an agreement relating to the custody or access to the children as those matters are governed by separate and specific laws that focus on the best interests of the children.
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