Ever wondered about the 'what ifs' in life? It's not always comforting, but taking risks is inevitable. We secure our cars, homes, and wellbeing with insurance because we want to be prepared for the unexpected. However, when it comes to relationships, contemplating their possible end can be daunting.
In the United States, spouses find protection through Prenuptial agreements. In Canada, we have a comparable tool - the Marriage Contract. With the divorce rate in Ontario at 42.1%, it's wise to consider this safeguard before saying 'I do.'
While discussing a marriage contract might seem uncomfortable initially, the benefits far outweigh the awkwardness. This legal tool ensures both partners are protected, providing peace of mind as you embark on your journey together.
What is a marriage contract?
A marriage contract is a domestic contract in the form of a legal document that both spouses execute. The legal document outlines how your family property will be divided and what support will be provided following the divorce or death of a spouse. Marriage contracts secure you and your partner’s properties and assets if things go south. Of course, the goal is never to get to that point, but then again, you never know.
The FLA codifies marriage contracts in Section 52(1), providing that two persons who are married to
each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or death, including:
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and
(d) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 52 (1); 2005, c. 5, s. 27 (25); 2020, c. 25, Sched. 1, s. 28 (6).
Ensuring the Validity of Your Marriage Contract: Common Pitfalls to Avoid
A court can invalidate a marriage contract in certain circumstances. One of the most common reasons is if one party has failed to disclose a significant asset or debt that existed when the contract was signed.
Incomplete or dishonest financial disclosure can make the contract unenforceable. An additional reason for invalidation is if one party did not fully understand the consequences of the agreement. This can be avoided if both parties seek independent legal advice from separate lawyers who will represent each party's best interests. Finally, a marriage contract could be set aside if one party signed it under duress or fraud.
Marriage contracts can be complicated. Several potential problems could render a marriage contract invalid if it is not correctly drafted and executed. Therefore, seeking legal advice before preparing and signing a marriage contract is highly recommended to ensure that it will be valid and enforceable in future disputes or challenges.