Do I need a Marriage Contract?

Newly-engaged couples often spend thousands of dollars and months planning the perfect wedding ceremony, but most do not spend sufficient time or energy reflecting on what is to come after the “I dos.” A marriage contract (also referred to as a prenuptial agreement) is an important part of the planning process, permitting couples to plan for a joint financial future and discuss their visions together, whether or not the marriage lasts. The binding effect of a marriage contract brings clarity and grants legal protection in the unfortunate event of a divorce.

What is a marriage contract?

A marriage contract is a legally binding contract generally entered into before marriage, although it can also be entered into after a couple is already married.  A marriage contract addresses legal claims over assets owned by each partner prior to marriage, as well as any property acquired during the marriage, in the event that the marriage ends in divorce or separation.

Is a marriage contract required?

There is no legal requirement in Canada for couples to enter into a marriage contract, although they are becoming increasingly popular. Historically, marriage contracts were primarily recommended for anyone who was wealthy. Opinion has shifted in recent years and most married couples are now advised to sign a marriage contract. If you intend to own property together, have income separate from your spouse, or choose to alter your career path to raise children, you may want to consider entering into a marriage contract.

A cohabitation agreement is similar to a marriage contract but is used by couples who are not married (i.e., are common law spouses). It can be used to ensure the fair treatment of each partner upon the breakdown of their relationship.

Myths about marriage contracts

Confusion surrounding marriage contracts has led to a series of popular misconceptions. In this article, we review some common myths about these agreements.

1. Marriage contracts are only for the wealthy

Marriage contracts are important for everyone. Given high legal fees associated with divorce, the extreme stress surrounding separation, and increasing financial independence among Canadians, a marriage contract can be beneficial for most couples. In the event of divorce, having a plan for separation which was made during a period of good will and mutual trust will expedite the process, protect your assets, and save legal costs.

2. Marriage contracts are not binding

Marriage contracts are generally enforceable in Canada, although typically, full financial disclosure and independent legal advice are required. Pursuant to provincial legislation, two people who are married or intend to marry normally have the authority to enter into a marriage contract. The agreement sets out their rights and obligations to one another during marriage, and in the event that the marriage ends. Typically, marriage contracts do not become enforceable until after the marriage has taken place.

3. These agreements assume our marriage will end in separation and/or divorce

Creating a marriage contract provides a meaningful opportunity for couples to speak openly about their finances, wishes for taking care of children from prior relationships and taking care of one another. Arranging for a marriage contract is nothing more than a couple implementing safeguards in the event their marriage breaks down.

Couples do not enter into a marriage with the idea that it will end in divorce, but the reality is that divorce rates are high. Developing a marriage contract may actually strengthen the relationship as partners speak candidly about their plans for a future together.

For further information, or assistance in creating a marriage contract, please consult a TEP.