Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to getting a marriage contract or prenuptial agreement in Ontario, you should seek professional assistance.
In my previous article, I spoke about marriage contracts and prenuptial agreements, what they are, what their benefits are, and what is required to make them legally binding.
Remember, part of the benefits of having a marriage contract is it allows specific assets to be protected if the marriage fails, it can be used to create or exclude certain financial support obligations if the marriage ends, and it can be used to make arrangements to divide wealth and property that has accrued during the course of the marriage.
In this article, I’ll be discussing a basic Ontario marriage contract template:
This is the part that typically says something like “This is a Marriage Contract made on this day between X (Wife) and X (Husband)”.
This is the background information about why the parties wish to enter into the marriage contract. It just gives the contract a context. It could say something like:
* The parties intend to marry each other on X.
* The parties are married and wish to arrange for the distribution of their estates upon death.
* The parties are married and wish to exclude X’s assets or property from her net family property in the event of X’s death or in the event of a separation or termination of the marriage.
You guessed it! You should define terms that will be used throughout the agreement such as “Matrimonial Home”, “Net Family Property”, “Property”, “Termination of Marriage”, “Ownership”, “Support”, etc.
Purpose of the Contract
It’s always a good idea to insert a statement to the effect of why the parties are entering into the contract. For example: “The parties wish their financial affairs to be unaffected by their marriage.” Or: “The parties wish to confirm that X (a particular asset) is owned by X and is not to be included in X’s net family property”.
It’s a good idea to repudiate any previous agreements which deal with the subject matter of this marriage contract.
When is this contract going to take effect (i.e. as of a particular date, on the date the parties marry, etc?)
Confirmation as Domestic Contract
A statement should be included saying that this is a domestic contract as per Ontario’s Family Law Act. Also, a statement should be included saying that this marriage contract prevails over the Family Law Act, and succeeding legislation, and any previous domestic agreements made by the parties and/or between a party and a third party.
This is where we get into the nitty gritty or meat and potatoes of the contract. In the following sections, the parties can:
* exclude part or all of the property owned by either spouse from their net family property (so their net family property is effectively$0);
* waive rights to shared assets or property;
* agree to have no rights under the Family Law Act to equalization of net family property;
* agree to have no trust interests in any property held in trust for the other;
* divide ownership of the matrimonial home;
* agree not to incur debts on behalf other spouse;
* agree to exclude support obligations;
* agree to create specific spousal support (e.g. limited based on term, amount, and dependent on length of marriage, periodic payment or lump sum, etc.);
The parties should make sure that their wills, power of attorneys over property, and living will coincide with their marriage contract.
The marriage contract should include a provision – along with other standard provisions (e.g. with respect to notice, entire agreement, currency, waiver of rights, severability, acknowledgment of independent legal advice, representations and warranties, governing jurisdiction, etc.) about how the marriage contract can be amended (e.g. in writing, signed by both parties, etc.).
Representations and Warranties
Here, the parties should each acknowledge that they (among other things):
* have had independent legal advice;
* are of full and sound mind and capacity;
* are entering into this agreement freely and voluntarily;
* understand and appreciate the nature of the contract;
* have read the entire agreement and understands its terms and conditions;
* have made full and complete disclosure of his or her financial circumstances to the other spouse (e.g. assets, liabilities, income, expenses, etc.).
Limitation of Liability
Given that the parties may be giving up things like entitlement to property, assets, money, support, etc., you should include a release or limitation of liability for claims arising from the Divorce Act and Family Law Act, as amended. Make sure to have a lawyer draft and review this with you as it should be fairly tight to prevent future claims from arising.
It’s a good idea to have each of the two solicitors to attest that he or she explained the nature and consequences of the marriage contract and is convinced that his or her client is entering into the marriage contract freely and voluntarily and with full mental capacity.
The parties must sign the agreement before witnesses. The witnesses can be the lawyers and that’s what typically happens.
Overall, I’ve provided a basic template of what kinds of terms and conditions are included in a marriage contract. You should not rely on this template along. You are always cautioned to consult with a lawyer to see that your specific rights and interests are adequately protected and promoted.