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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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What is a prenup or a marriage contract?
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Reviewed: 
July 31, 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, child support, and a share of family property. 

The law says that at the end of a marriage, married couples usually share the value of all their family property equally. Whether the mahr is included or not as part of the calculation of family property depends on the wording of the agreement. For example, the agreement might say that the mahr is excluded from this calculation. Then the woman gets the mahr in addition to her share of family property. 

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