In Ontario, couples can enter into a marriage contract that addresses the following issues:
- ownership in or division of property;
- support obligations;
- right to direct the education and moral training of children; and
- any other matter in the settlement of their affairs.
The Family Law Act does not allow for marriage contracts to limit a spouse’s right to possession of the matrimonial home nor to address the right to decision-making responsibility (previously “custody”) and parenting time (previously “access”).
Marriage contracts must be in writing, signed by both parties, and witnessed. Couples can also sign marriage contracts prior to marriage or any time before the marriage breaks down.
Full and frank financial disclosure from both spouses is necessary to avoid the likelihood of the contract being unenforceable. The court may set aside the contract if a spouse fails to disclose a significant asset or debt. The court may also render a contract unenforceable if a party did not understand the nature or consequences of the contract.
Couples who wish to negotiate the terms of a marriage contract should seek independent legal advice to fully understand their rights and obligations.
While the idea of enforcing a marriage contract seems like a practical solution to set reasonable expectations in a marriage, the reality is that most couples do not enter into these types of agreements.
Given the negative perception of marriage contracts in the media, couples should instead view marriage contracts as a tool to strengthen their marriage and encourage effective communication.
According to Statistics Canada, the number of divorced Canadians over the age of 65 increased since 2010. Problems such as division of assets, estate planning, and spousal support become much more difficult to resolve.
A well-executed marriage contract could very easily reduce any future conflicts, as well as to ensure that both spouses feel fully prepared for any challenges that lie ahead.
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