Usually, a prenuptial agreement is a legal contract between two partners without marriage. The prenuptial agreement has plenty of similarities with marriage or domestic contract.
Suppose, you are wondering about entering into a prenuptial agreement. In that case, you may have so many questions in your head right now because there is some important nitty-gritty about a prenuptial agreement in Canada.
In this writing, we are going to tell you every single nitty-gritty that you need to know about the prenuptial agreement in Canada. Keep reading to learn more.
What is a Prenuptial Agreement in Canada?
A prenuptial agreement in Canada is often recognized as a prenup, ante-nuptial, or cohabitation agreement. It is a written contract that a couple needs to sign when they want to live together without marriage.
In other words, when common-law partners enter into a written contract, it is called the prenuptial agreement or premarital agreement. But you may get confused about the marital agreement versus the prenuptial agreement.
There are some sound differences between the martial agreement and prenuptial agreement. Let us discuss the differences in the following:
Prenuptial Agreement Vs. Marital Agreement – The Differences
As you have known, there are some differences between a premarital agreement and a marital agreement. The very basic difference is that When a couple is married to each other, they need to sign in a legal contract. And this legal written contract is called a marital agreement.
On the other hand, a premarital or prenuptial agreement refers to the written contract of a couple who wants to live together without the marriage. That is why the marital agreement is also called the postnuptial agreement.
As long as the contract is established, the couple may go through different types of issues like division of the property ownership, support obligations, and so on. If a couple wants, then they can go from a prenuptial agreement to a marital agreement.
Is a Prenuptial Agreement Beneficial for You?
Whether you should go for a prenuptial agreement or not will completely depend on you and your situation. But you need to keep in mind that no matter what your agreement status is, it will contribute to your divorce process.
So, before going for any sort of written agreement, you need to be aware of a certain thing about it. For example, the property division after separation, child or spouse support, and so on. So, it becomes easier for you when you are planning to get a divorce in Canada.
Sometimes people are not that optimistic about marriage. Because marriage deals with so many responsibilities and liabilities, that is why people prefer to go for a prenuptial agreement. Even though, in the premarital or prenuptial agreement, you also need to deal with some sort of issues like spouse support.
That is why again, you need to think twice before going for any sort of written partnership agreement.
9 Tips You Should Follow For Taking Prenuptial Agreement in Canada
Here is a list of things you must follow for taking a prenup in Canada to make sure you are on the right track:
1. Ensure economic transparency
You must declare all of your income, assets, debts, and liabilities when creating a prenup, along with providing specifics on their typical monetary units, just to be on the safer side. Otherwise, it could jeopardize the validity of your prenuptial agreement, which you will certainly never want to happen.
2. Have consent with related status
Even when couples create prenuptial agreements, they must still be drafted following the family law and the divorce acts. If you need a clear concept of how things work, get in touch with an experienced moose jaw lawyer to learn how to meet all constitutional standards.
3. Talk about spousal maintenance
Life is unpredictable, and you never know what can happen the next moment. A prenup is what helps that comes in handy if your marriage ends.
That’s why you must discuss spousal support beforehand. So, you don’t face any problems later in the future despite giving up your employment and career to be married.
4. Ensure child custody and support
If you have children, you must cover and write about child custody and support in the prenup to avoid future hassles. Besides, the court is most likely to uphold the terms of the prenuptial agreement if they are favorable and sufficient for the child’s better life.
5. Never go for an oral agreement
The person you love and adore the most can change with time. So, without written agreements signed, chances are high that s/he may turn away from their promises. Besides, the court doesn’t believe in any oral contracts; instead, it always asks for legal documents.
6. Always provide correct information
Make sure to give accurate or correct information. The court never supports false information. Providing the court with incomplete or wrong facts is considered a criminal offence by law.
7. Always provide correct information
Depending on the consent of the engaged couples, a prenuptial agreement is created. As a result, it gives both sides plenty of time to review the paperwork and agreement, obtain legal counsel, and make economic disclosures before signing and giving their final approval.
Besides, the court even looks at the amount of time spent creating these agreements, and if they discover that it was done quickly, chances are high that they will immediately declare it null.
The perfect time to sit for a prenup is 4 months before marriage. The longer, the better it will be for both of you to prepare and finalize the contract properly.
8. Abstain from any kinds of compulsion and manipulation
Similar to other legal agreements, a prenup should never be made or signed under the force of threats or compulsion. This act of forcing someone to do anything against their consent is a bad practice and a criminal offence by law.
Therefore, both parties must sign the contract freely and voluntarily. Otherwise, if any traces of compulsion or manipulation is found, then in that instant, it will be regarded as a void contract.
9. Hire a lawyer with expertise in the relevant field
When considering a prenuptial agreement, you must seek legal counsel from an experienced prenup lawyer. Normally, you will only be familiar with some legal terms. As the entire procedure requires handling many legal issues, it will become harder for you.
Besides, these legal matters need complete precision, and a slight mistake is enough to cost the entire case—one of the very reasons to get an experienced lawyer right from scratch.
A lawyer can also assist you with the prenuptial contract sample and other legal matters you should consider.
Last but not least, your lawyer will always be on your side, from fighting to giving you the right guidance whenever required.
Statistics of a Prenuptial Agreement in Canada:
Though the prenuptial agreement is very much common in the USA and also in Canada, then again, data shows that only 10-15 % of the total population go for the prenuptial agreement. These types of relationships are, by definition, private relationships.
That is why most of the relationships are beyond statistical information. Since the divorce rate in these recent years is very high, which is 50% in the USA and 38% in Canada, that is why experts believe that these types of relationships are wise for people who want to preserve their property before marriage.
Since prenuptial agreement mainly deals with spousal property. That is why it can also be very useful for other cases. For example, the custody arrangement plays a very useful role for an individual.
Can a Prenuptial Agreement Be Invalidated?
According to the family law acts, some factors can be invalidated in the prenuptial agreement. Sometimes, a prenuptial agreement also can be overturned for a particular circumstance or reason. Now let us discuss some of the reasons why a contract can be invalidated:
- When you will hide a significant amount of assets, debts, or properties at the time of agreement.
- When a party fails to understand the nature of the written contract
- Both parties should be abided by the law of the contract.
If any party fails to follow those factors, the prenuptial agreement can be overturned or revoked.
How does a Prenuptial Agreement Affect a Will in Canada?
In Canada, a prenuptial agreement holds the complete authority to amend a will. Such conflict generally occurs when an individual passes away and leaves a will, violating certain prenuptial agreement conditions.
When a prenuptial agreement’s terms and circumstances conflict with the will, the court carefully examines all the contract terms. In most situations, the prenuptial agreement is given greater weight than the will. But the ultimate decision rests with the courts, with the possibility of anyone becoming the winner.
Hence, the agreement must consist of all the terms and conditions. So the reader can understand everything while having a quick through it.
What to do if a prenuptial agreement doesn’t include any crucial information that needs to be added or changed and the spouse passes away in a place with differing laws?
Well, for a similar situation, the state where s/he passed away will eventually get the power to do any modifications.
In the following two circumstances, a will take immediate priority over the prenuptial contract:
- Prenuptial agreements in Canada frequently include a condition known as the “sunset clause.” This provision gives the prenup a deadline for termination. And when that time comes, and it is still the same, then certainly here, they will get precedence over the prenuptial agreement.
- Additionally, the court will not enforce the prenuptial agreements if the last will can ideally demonstrate that they are completely invalid and unlawful.
This circumstance mainly occurs when the spouse signs the contract under compulsion or threat.
You May Also Like: What Happens If You Divorce with a Prenup?
How is a Prenuptial Agreement Enforced?
Before 1978, most Canadian states refused to recognize prenuptial agreements because they were against public policy and hence invalid.
However, after the Family Law Reform Act (now known as Family Law Act) in 1978, every mature and willing adult can now sign premarital agreements according to their state’s laws.
Every state has different rules and regulations to follow. Therefore, your prenuptial agreements must also be enforced following the state law where you reside.
Afterwards, the validity of the prenuptial contract will be governed by that state law. A hearing may be necessary if the enforceability of a prenup is disputed in the case of separation, divorce, or death.
Here, the trial’s objective is to provide the judge with the opportunity to consider the reliability of the witnesses and the strength of the evidence presented to determine whether the prenuptial contract should be enforced.
Requirements to enforce a prenup agreement in Canada
The enforcement of a prenup might be affected by various factors. The following is a list of the basic requirements to enforce a prenup:
- The contract covers the rights and obligations of both parties concerning the either shared or exclusive property.
- Both parties must prepare and sign the written agreement before being married.
- The deal was made voluntarily and is not regarded as unjust or unfair by any means (such as overly partial and discriminating towards a one-sided party).
- All the contract terms and conditions regarding the parties’ financial data either have enough disclosure or have intentionally and voluntarily declined financial exposure.
- The contract is signed without forceful circumstances before the marriage ceremony (with a minimum of one to two months in hand).
- No parties suffer any sort of financial issues owing to the prenup. Otherwise, it will be deemed unfair.
Note: All the above requirements are most states’ basic and common rules. However, as mentioned above, every state has a different law. So, cross-check the rules and regulations of your state before going ahead with a prenup. We recommend you consult an experienced lawyer.
Child Support in a Prenuptial Agreement:
In every partnership contract, child support is an essential part. When a couple has a child, they need to bear the child support regardless of their partnership status is. Likewise, in a prenuptial agreement, both partners need to deal with the child support guidelines.
Usually, after the separation, the child’s support depends on the child’s best interest. Then again, certain things are included in the child support guidelines. If a couple has a child and signs in a prenuptial agreement, then they have to follow these guidelines.
If you are dealing with a prenuptial agreement in Canada for the first time, it is quite normal to get confused. Because you may need to deal with a lot of legal laws and processes, not only this, if you fail to follow the correct procedures, then the entire contract may get invalidated. You should contact a Prenup Lawyer for this.
That is why it is important to be careful about the prenuptial agreement contract. If you need further clarification, you can take assistance from professional and expert family lawyers. Hopefully, this writing helped you to understand the very basic idea about the prenuptial agreement in Canada.
Frequently Asked Question:
How Much Does a Prenup Cost in Canada?
A prenuptial agreement can be very complex sometimes. The cost of a prenuptial agreement is much more dependent on the complexity of the case. Then again, there is an average cost for a prenup in Canada. The average cost for a prenup in Canada can go from $400 up to $2000.
How Long Does a Prenup Last in Canada?
Usually, a prenup contract will be validated until or unless a couple wants to charge it. But there are some factors too that a couple needs to abide by. Any violation of those factors can result in overturning a prenuptial agreement.
What Makes a Prenup Invalid in Canada?
Sometimes one party may not be willing to disclose their significant amount of assets at the time of agreement. In that case, if the court finds that one party is dishonest and hiding anything, the entire prenup contract can be invalidated.
How Common are Prenups in Canada?
In most cases, people want to keep their relationships private. That is why the statistical data shows that only 8% of the population in Canada have the prenuptial agreement