Marriage Contracts

Transcript from Marriage Contracts Video

Please note: The script may not be exactly what is spoken, but contains the same information as presented in the video.

Hello, my name is Shelly Banihashemi and I am an Associate with the Feldstein Family Law Group. In this session, we will be discussing marriage contracts and the impact it may have upon a divorce or separation.

In Ontario, pre-nuptial agreements are known as marriage contracts. Two people who are married or intend to get married can enter into a marriage contract in which they agree on their respective rights and obligations under the marriage or upon separation. The contract can deal with issues such as ownership and division of property, support obligations and the right to direct the education and moral training of their children, but it cannot address right to custody of or access to the children and any other matter in the settlement of the parties affairs. While parties can agree on the upbringing of their children, they are not permitted to address who would have custody of and access to any children they have or may have in the future. Furthermore, parties are not able to agree on the limiting of either of their rights for possession of the Matrimonial Home. If there was a clause which was put into the contract limiting the rights to possession of the matrimonial home, it would be unenforceable. For example, the contract cannot say that upon separation the mother will reside in the home with the children while the father moves out of the home.

It is important that parties provide one another with full and frank financial disclosure prior to drafting the marriage contract as it is a fundamental aspect of drafting the contract. If parties do not provide one another with the appropriate disclosure, it may warrant having the contract set aside in the future. Other reasons parties may apply to the court to have the contract set aside includes a party failing to disclose to the other significant assets or debts that existed at the time the contract was entered into, if a party did not understand the nature or consequences of the contract; or for more general reasons such as undue influence, duress and so forth. There may also be instances where a court will set aside support provisions or a waiver of support in a contract if the provision or waiver results in unconscionable circumstances.

Often when parties have marriage contracts in place and they attempt to have them set aside, they may argue that specific clauses were not clear enough or they did not understand their consequences when signing the contract. In these situations, the Court must look for an interpretation that is in accordance with the parties’ intention at the time the contract was signed.

If you feel that you have signed an unfair marriage contract or if feel that you may be entitled to more than what the marriage contract provides for, please contact us to schedule a consultation.

Thank you for taking the time to watch this presentation, and I hope that you have found it helpful. For more information about marriage contracts or separation agreements, please also visit our website at www.separation.ca.