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What is a prenup or a marriage contract?

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What is a prenup or a marriage contract?

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Reviewed: 
July, 2016
Answer

A marriage contract is a written document that you and your partner can make either:

  • before you get married if you are planning to marry at the time
  • after you get married

A marriage contract is sometimes called a prenup or prenuptial agreement.

A marriage contract is a type of domestic contract that says how you deal with your issues while you are together or at the end of your relationship.

For example, you can agree on things like how you and your partner will divide your property and debts if you separate. The most common issues that people deal with in a prenup are property issues and spousal support.

If you were in a common-law relationship and have a cohabitation agreement, the law says that your agreement automatically becomes a marriage contract if you later marry your partner.

A cohabitation agreement or a marriage contract cannot say who gets custody or access to any children if you separate. This is because decisions about children must be made at the time you separate or divorce, based on what is in the best interests of the child.

A marriage contract also cannot change each partner's equal right to live in the home after they separate.

This information might not apply if you made your marriage contract outside Ontario. A family law lawyer can explain how the law applies to agreements made outside Ontario.

Mahr

A mahr is a type of agreement where the husband promises to pay his wife if the marriage ends or if he dies. Muslim marriage contracts usually include a mahr, whether the marriage takes place in Canada or elsewhere. A mahr is also known as mehr, meher, maher, or mahrieh.

To decide if a mahr can be enforced as a marriage contract, Ontario courts look at how the mahr is written and what happened when the partners agreed to the mahr. If the court decides to enforce your mahr as a marriage contract, it means that the court can order you or your partner to do what the mahr says.

A mahr should be clearly written and include details. For example, when it says the husband pays the wife, it should say:

  • the amount
  • the timing
  • any conditions

The mahr should also be signed by both partners, dated, and witnessed by another person.

Ontario's family law says a woman who has signed a mahr still has the right to claim spousal support or child support and an equal share of family property. She has a right to these and a right to whatever she gets from her mahr.

The law also says that whatever she gets from the mahr should not be included as part of the family property that is usually divided equally between the couple.

1. Discuss what legal issues you want to put in your agreement

You and your partner need to talk about the issues you want to put into your agreement.

You might not feel comfortable asking your partner to sign a marriage contract. But it is important to sign one if you want to change what the law assumes will happen during your relationship or after it ends.

For example, you might want to your partner to sign an agreement saying that they won’t make a claim to your family business if you separate.

The most common issues covered in these agreements are property division and spousal support.

Usually if you are married and you separate, you have to share property. In your marriage contract, you might say that you don’t want to share property. Or you might want to change how you share it.

Sometimes marriage contracts are signed because one partner:

  • is bringing a lot of assets into the relationship that they want to protect if the relationship ends
  • has a special type of property that they want to protect, such as a family cottage or family business
  • has children from an earlier relationship or other commitments that they want to take care of
Reviewed: 
October, 2016
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2. Talk to a lawyer

You don’t need a lawyer to make a marriage contract. But it’s a very good idea for each of you to get your own legal advice before signing one.

You can talk to a lawyer who can help you understand:

  • the claims you can make if you separate or divorce
  • your rights and responsibilities toward your children and your partner
  • the rules your agreement has to follow
  • how your rights change once you sign the agreement

You and your partner should not go to the same lawyer. It is important for each of you to get your own legal advice from different lawyers. This is sometimes called independent legal advice (ILA). The advice is independent because each lawyer is working for only one of you.

It is important to get ILA because:

  • it helps you understand what you’re agreeing to
  • your agreement is less likely to be challenged in court later
  • a court is more likely to order you and your partner to do what you agreed to in your agreement

If you decide not to get legal advice, you may not be able to argue later that you didn’t understand your legal rights when you signed the agreement.

If you can’t afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case, such as reviewing your agreement.

If you can't afford to hire a lawyer at all, you might be able to find legal help in other places.

Reviewed: 
October, 2016
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3. Make your agreement

A marriage contract has to follow certain rules to be binding and enforceable. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says.

For example, the law says that you and your partner must honestly tell each other about all your finances before making an agreement about spousal support or dividing property. This is sometimes called financial disclosure.

Later, if one of you doesn’t want to follow the agreement, the court checks to see if the process was fair at the time you discussed and signed your agreement. The court looks at what happened when you first signed the agreement, not at the time that you or your partner challenge the agreement.

The court might decide that the process wasn’t fair if:

  • one of you, or someone else, forced or pressured the other partner to sign the agreement
  • one of you gave false information to the other partner to get them to sign the agreement
  • the agreement is very unfair to one partner

If you get independent legal advice (ILA), it can help to show that the process was fair if the agreement is challenged in the future.

Reviewed: 
October, 2016
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4. Sign your agreement

There are rules about how you make an agreement. These rules are called formal requirements. These rules say your agreement must:

  • be in writing
  • have a date
  • be signed by both people who are making the agreement
  • be witnessed, which means you and your partner have to sign the agreement in front of another person
  • be signed by the witness

If you don’t follow these rules, and you don’t agree later about your agreement, the court doesn’t have to order you or your partner to follow it.

There is no rule about what exactly you have to agree on in your contract. But you should be as clear and detailed as you can so that the agreement shows exactly what you and your partner agreed to.

Reviewed: 
October, 2016
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5. Change or cancel your agreement if needed

It is a good idea to review your agreement as your situation changes to see if you still want it to apply.

Changing an agreement is sometimes also called varying or amending an agreement. Cancelling an agreement is sometimes also called rescinding an agreement.

How to change or cancel your agreement

You can change or cancel your agreement at any time if you and your partner agree. To do this, you have to make a new agreement. This new domestic contract is sometimes called an "addendum agreement" or “amending agreement”. In this agreement, you usually say what parts of the first agreement you agree to change or cancel.

For example, say you sign a marriage contract on May 1, 2012. Your new agreement might be called "Amending Agreement to the Marriage Contract Executed on May 1, 2012". It should say which specific paragraphs are being changed and how they are being changed.

Your new agreement has to follow the same rules as your first agreement to be binding and enforceable. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says.

You also need to follow the same formal requirementsthat you followed when you signed your first agreement. This includes making the new agreement in writing and having each partner sign it in front of a witness. For more about these formal requirements, see Step 4, above.

Reasons to change or cancel your agreement

There are many reasons why you might want to change or cancel your agreement.

Many marriage contracts say how a couple will deal with property and debts during the relationship and if the relationship ends. So you might want to consider changing your agreement if your financial situation changes. For example if:

  • one partner gets a large inheritance>
  • you have a child together
  • one partner’s income increases or decreases a lot
  • one partner falls ill and cannot work
Reviewed: 
October, 2016
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Learn more about this topic
CLEO (Community Legal Education Ontario/Éducation juridique communautaire Ontario)
Springtide Resources
Canadian Council of Muslim Women

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