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Marriage Contracts/pre-nups | Will Hutcheson, Toronto Family Lawyer  

Marriage contracts/pre-nups

What Should I Be Thinking About When Considering a Marriage Contract (Commonly Called a “Pre-Nup”)?

A marriage contract, or pre-nup agreement, is a contract that can be signed either before or during a marriage.  The purpose is to agree to what will happen if the couple separates.  The couple is therefore altering what the normal family law rules say about separation.  There are many possibilities for what a couple can agree to.   The two most common things to set out in a marriage contract are how property will be divided upon separation and how the issue of spousal support will be dealt with.  A couple cannot contract about certain issues in a marriage contract such as the issues of child support or custody of the children.

The most common reason that a couple will want to sign a marriage contract is if one member of the couple is going to be bringing property into the marriage and that person does not want that property to be equalized according to the general family law rules.  This could be because one person has significant family money or has children from a prior marriage or because one person already owns a house (a special case in family law that needs to be specifically considered).

There are two main questions to ask when designing a marriage contract or pre-nup agreement: 1)What do I want this marriage contract to say? and; 2) How do I make sure that this marriage contract will hold up if it is ever challenged?  The first question is something that you and your lawyer should discuss together as there are many possible answers.  You will want to make sure that you craft something that both you and your partner feel is fair and also something that isn’t going to cause problems in your marriage.  The second question is really something that your lawyer needs to worry about.  The fact is that many marriage contracts are overturned by the courts for many different reasons.  One of the most common reasons is that the parties to the contract didn’t have a lawyer.  Don’t try to do a marriage contract without a lawyer, your contract will very very likely not be worth the paper it is written on.

A well done marriage contract should be something that both people in a relationship 1) understands 2) is happy with and feels is fair and 3) holds up and is followed if the couple ever does separate.