Property Division: Equalization and The Family Law Act

You don’t want a prenup. But did you know you actually already have one?

Depositphotos_67993691_l-2015.jpg

In Ontario, when a married couple separates, their property is divided between them in a process called equalization. The equalization process is set out in the Family Law Act.

The definition of “property” is broad and includes “any interest, present or future, vested or contingent, in real or personal property”. The definition of “excluded property”, which you do not have to share, is narrow and you have to be careful to ensure excluded property is protected.

What does this mean for married couples?

It means that all married couples already have a “prenup” - the law in place that sets out what happens to your property when they separate. As soon as you get married, you “opt in” to this process.

Under the terms of this “prenup”, you may have to:

I don’t want to share my property with my spouse.

The good news? There’s a way to contract out of the Family Law Act.

The bad news? You need to get your own prenup.

A prenup, or “marriage contract” as they are called in Ontario, sets out your wishes for what you want to happen if a separation occurs. It lets you and your spouse decide - instead of relying on a general law - what the terms of your separation will be. And discussing these terms before a separation occurs means two people who want what is best for each other - instead of two people hurting and angry after a separation - get to decide the terms.

How do I get started?

Talking to your spouse is the first step - and we know it isn’t always easy. We have some tips for starting the conversation here.

We also know you have questions about the process, costs, and more. Start by reading our FAQ about prenups, then book a free, no obligation telephone call to talk to a lawyer about your specific needs.

Most importantly? Don’t go through the process alone. A lawyer plays an important role in making sure your prenup is valid and enforceable, so if a separation occurs, you know its terms will be followed.