Both the Divorce Act and the Family Law Act allow parties to enter into marriage contracts to override portions of the Family Law Act and the Divorce Act. This allows people to replace the default separation regime with one custom built to serve the Parties’ needs.
Marriage contracts are a type of domestic contract that is entered into either before or after marriage. These contracts can be used to:
- LDefine the financial arrangements between the parties regarding contributions to assets and property-related expenses;
- LPermit the parties to fairly preserve pre-marital and excluded assets such as gifts, including appreciation of pre-marital or excluded assets;
- LConfirm the parties’ entitlement to pre-marital assets;
- L Deal with potential trust issues regarding assets; and
- LFix new rules regarding the parties’ spousal support obligations should the parties separate.
Marriage contracts are complex agreements that are usually designed to address specific financial issues specific to the Parties. This is why each domestic contract must be drafted to specifically serve the Parties’ needs to ensure a fair result for everyone.
The formal requirements for a marriage contract, like any other kind of domestic agreement, are simple.
- LThe contract must be in writing;
- LThe contract must be signed by the parties; and
- LThe contract must be witnessed.
That said, if parties to a marriage contract separate, parties can attempt to set aside the domestic contract on the basis that it is unconscionable. A finding of unconscionability can result in some or all of the marriage contract being set aside.
When showing that an agreement is conscionable, Ontario courts have identified several important factors to consider. Foremost among these factors is whether both Parties had access to independent legal advice and full financial disclosure before the agreement is entered into.
The lawyers at Sachdeva Milne Law Group have years of experience in preparing all manner of domestic contracts, including marriage agreements. Our experienced lawyers can help you navigate prepare an agreement that is fair to everyone, so that you can get married with confidence that, if you later separate, the result will be both parties.