Prenuptial Agreements- Do's and Don'ts

Answering "Prenup" Questions

A marriage contract or cohabitation agreement (referred to here as a “prenup”) can include many things, but there are limits as well.  What can and cannot be included in such an agreement is set out in the Family Law Act.  Decisions made by courts with respect to such agreements also set out some rules and issues you should be aware of.

Can I protect my assets and address debts?  Can I protect myself against paying spousal support?  Can I ensure my children are raised in a certain religion?

Yes – you can include the following in your agreement:

  • Agreements regarding the ownership and division of property, including your pension, investments and real estate, during the relationship and on its breakdown (including on death)
  • Responsibility for debts;
  • Details about spousal support, including the payment of support or waiver of spousal support; and
  • Agreements regarding the moral training and education of your children

Can I make my ex-spouse leave our home if he/she cheats on me?  Can we decide where our children will live, and can I make sure my ex-spouse has to pay me child support no matter what?

No – you cannot include the following in your agreement:

  • The agreement cannot say who will live in the “matrimonial home” when there is a separation.  Clauses that force one spouse to move out of the home are not enforceable;
  • It also cannot limit a spouse’s special rights in the matrimonial home (stay tuned for more details on these rights in a later post);
  • The issues of custody and access cannot be decided in advance (i.e. with whom your children will live); and
  • You cannot set out what child support will be paid.

Do I have to tell my partner how much money I owe on my credit cards?  Can we just agree and not write it down?  What else do I need to know?

Keep in mind that:

  • Both parties should have separate lawyers in order to ensure you both understand the nature and consequences of the contract;
  • The Agreement must be in writing, signed, witnessed and dated; and
  • You should make full disclosure of your income, assets, debts and other liabilities prior to signing the contract; and
  • A prenup or portions of it can be set aside for a number of reasons.  

As you can see, prenups are not always straightforward and there can be consequences if they are done incorrectly.  For this reason, it is in your best interests to work with a lawyer when preparing and signing an agreement, to ensure that it reflects your wishes and that it will be enforceable if there is a breakdown of the relationship.

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