Representing Clients Who Want a Prenuptial Agreement in Mississauga
In some cases, people who are planning on getting married enter into a contract that sets out certain rules regarding their marriage and how certain issues will be resolved in the event that the marriage ends in divorce. These kinds of contracts are commonly referred to as “prenuptial agreements” or “marriage contracts.” These contracts are authorized by the Ontario Family Law Act, which outlines how they can be formed and places certain limitations on their scope.
What Issues Can a Prenuptial Agreement Address?
Marriage contracts in Ontario can address a wide variety of issues. The Family Law Act authorizes people who are planning on getting married to enter into a contract in which they agree on their respective rights and obligations under the marriage, during separation, or on the annulment or dissolution of the marriage, including:
- The ownership and division of property
- Support obligations
- The right to direct the education and moral training of their children, but not the right to custody or access to their children
- Any other matter in the settlement of their affairs
Importantly, courts have significant discretion in enforcing marriage contracts, and are explicitly authorized to set aside or disregard provisions that are not in the best interest of a child with regard to the education, moral training, or custody of or access to a child, provisions regarding child support, clauses requiring a spouse to be chaste in order to receive support, and, generally, any other clause that the court deems unconscionable.
Who Can Benefit from a Prenuptial Agreement?
Many people believe that marriage contracts are only for wealthy or famous people. However, these contracts can benefit couples in many different situations. Some circumstances that may indicate you should consider a prenuptial agreement include:
- Owning a property that you and your future spouse intend to live in together
- Prior marriages
- Children from prior relationships
- Expecting a substantial inheritance
- Having assets or property you want to retain in a divorce
You can tailor these agreements to your specific situation, and you do not have to be wealthy to enjoy the protection of a prenuptial agreement.
Do You Need a Family Lawyer to Enter into a Prenuptial Agreement?
It is not necessary for a family lawyer to draft and review a prenuptial agreement. However, when you think of all the requirements and formalities under the law, it is always wise to have legal advice and counsel during this process.
First, a family lawyer can review your circumstances and help you decide whether a marriage contract is right for your situation. Next, we can ensure that your contract is properly drafted to both achieve your goals and protect your interests. If needed, we can help negotiate with your soon-to-be spouse regarding the terms of the agreement. Then, we will make sure that all of the necessary formalities happen, so your agreement is fully enforceable.
If You’re Already Married, it’s Not Too Late to Protect Your Rights
Some people get married and then later realize they could have benefitted from a prenuptial agreement. In this situation, know that it is possible to enter into a marriage contract both before or after marriage. Two spouses can draft and sign a contract, commonly called a postnuptial agreement, that dictates terms for their marriage and potential divorce.
Challenging an Existing Prenuptial Agreement
In some cases, it may be possible to challenge the validity of an existing marriage contract or specific terms in it. Some of the circumstances under which you may be able to challenge a prenup include the following:
- If the formation of the contract did not comply with the formalities required by the Family Law Act
- If one of the parties failed to disclose assets
- If one of the parties did not understand the nature or consequences of the contract
- If one of the parties entered into the contract under duress
- If one of the parties did not receive independent legal advice
In addition, a court may set aside a provision regarding for support or a waiver of support and impose its own order if the provision support or waiver of support results in unconscionable circumstances. If the provision for support is in favour of, or the waiver is by or on behalf of, a dependant who qualifies for an allowance for support out of public money, or if there is default in the payment of support under the contract at the time the application is made, the contract may be set aside by the court.
If You Are Considering a Prenuptial Agreement in Mississauga, Call Amiri Family Law Today
If you are considering getting married or are already married and are considering a marriage contract, it’s in your best interest to speak to a family lawyer as soon as you can. Nima Amiri is an experienced litigator and advocate who is committed to helping individuals protect their rights and resolve disputes as favorably as possible. To schedule a free case evaluation with a family lawyer in Mississauga, call Amiri Family Law today at 647-792-2961 or contact us online.
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