Prenuptial agreements, also known as premarital agreements or marriage contracts, are legal agreements between two parties made before their marriage. These agreements typically outline how property, assets, and debts will be divided in the event of a separation or divorce. Prenuptial agreements are becoming increasingly popular in Canada, as more couples seek to protect their assets and plan for the future. However, there are certain things that can and cannot be included in a prenuptial agreement in Canada.
What can be included in a prenuptial agreement in Canada?
Under Canadian law, prenuptial agreements can cover a wide range of issues related to property and assets. Here are some of the things that can be included in a prenuptial agreement in Canada:
- Division of property: Prenuptial agreements can outline how property, including real estate, investments, and personal belongings, will be divided in the event of a separation or divorce.
- Spousal support: Prenuptial agreements can also address spousal support, including how much support will be paid and for how long.
- Debts: Prenuptial agreements can specify how debts, such as credit card debt or mortgage payments, will be divided between the parties.
- Business interests: Prenuptial agreements can address how business interests, such as shares in a company or partnership agreements, will be divided.
- Inheritance: Prenuptial agreements can also outline how inheritance or other gifts will be handled in the event of a separation or divorce.
What cannot be included in a prenuptial agreement in Canada?
While prenuptial agreements can cover a wide range of issues related to property and assets, there are certain things that cannot be included in a prenuptial agreement in Canada. These include:
- Custody and access to children: Prenuptial agreements cannot address custody or access to children. These issues must be determined by the courts based on the best interests of the child.
- Child support: Prenuptial agreements cannot address child support. Child support is determined by the Federal Child Support Guidelines and cannot be contracted out of.
- Unfair terms: Prenuptial agreements cannot contain terms that are unfair or that would leave one spouse destitute in the event of a separation or divorce. Courts will not enforce prenuptial agreements that are unconscionable or that unfairly disadvantage one spouse.
- Illegal activities: Prenuptial agreements cannot include provisions that encourage or promote illegal activities.
- Personal issues: Prenuptial agreements cannot address personal issues such as how often the parties will have sex, what religion the children will be raised in, or what the parties’ roles and responsibilities will be in the marriage.
It is important to note that prenuptial agreements are not bulletproof and can be challenged in court. In order to be enforceable, a prenuptial agreement must be fair and reasonable, and both parties must enter into the agreement freely and voluntarily. If one party can demonstrate that the agreement was signed under duress, coercion, or without a full understanding of its terms, a court may set the agreement aside.
If you’d like to draft a prenuptial agreement in Canada, reach out to Brampton’s best family law firm, Sterling Law. They offer in-person consultation in Brampton and Mississauga and virtual consultation across Canada.