What are the requirements for valid marriage agreements?

When couples consider marriage, they are usually advised to sign prenuptial agreements. In Ontario, prenuptial and postnuptial agreements are both referred to as marriage agreements. For them to be valid, certain requirements must be met. For instance, both parties must sign the document , and it must also be signed by witnesses.

Those who plan to marry — or are already married — can include any agreements in the contract, except any terms that apply to matters related to access to or custody of a child. Terms that serve to limit a spouse’s rights to the family home may also be unenforceable, but valid marriage agreements will be binding on both parties. Furthermore, both parties must provide full disclosure of debts and assets at the time of the drafting of the contract. Before executing the document, both must understand the nature, contents and consequences of the agreement. Also, a marriage contract should not be signed on the eve of the wedding, which might lead to a claim of coercion or duress.

A marriage agreement must comply with the laws related to contracts, and any party may petition the court to set aside the agreement. However, that party must show that one of the mentioned criteria was not met. One court set aside a marriage agreement because it determined that there was a deliberate breach of the statutory obligation for financial disclosure by the husband and that both the wife and her lawyer failed to understand the consequences and nature of the marriage agreement. The Supreme Court of Canada denied the husband’s leave to appeal.
Anyone considering such an agreement will want to utilize the services of independent legal counsel. An experienced family law lawyer in Ontario can provide valuable guidance and support concerning the negotiation and preparation of valid marriage agreements. The attorney can also help if the client seeks additional disclosure when it is suspected that the other party may be concealing financial information.  Source: ca.practicallaw.thomsonreuters.com, “Family law in Canada: Ontario: overview“, Esther Lenkinski, Alexandra Carr, Accessed on June 23, 2017

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