Family Law

Prenuptial Agreements

Family Law

Prenuptial Agreement Lawyers

A prenuptial agreement is a domestic contract the couple enters into before marriage. With the number of divorces rising every year, many couples feel the need to plan for any future uncertainty. This agreement may cover ownership and division of assets, spousal support, and how the children are to be raised in terms of their educational and religious requirements. However, matters concerning the custody or parenting access of the children will not fall under the purview of the prenuptial agreement. It must be a written agreement signed by both parties. A prenuptial agreement lawyer will help you draft such an agreement that is legally binding.

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What constitutes a prenuptial agreement?

The prenuptial agreement, also known as a prenup, determines how property, assets, and debts would be settled between the parties in the event of a divorce or separation. Such an agreement helps protect your assets, such as inherited property or your business, which might become difficult to separate from the marital assets and might be subject to division and equalization during the divorce. As mentioned above, matters concerning parenting and child support cannot be decided beforehand in a prenuptial agreement. Canadian law requires these decisions be based upon the best interests of the child, regardless of any agreement between the spouses before or during the marriage.

Agreement must be fair to both parties

It is worth mentioning here that the terms of the prenuptial agreement must be fair to both parties. For example, while matters concerning spousal support can be included in the agreement, the court may choose to ignore it depending on the circumstances at the time of the separation. Even if one spouse had waived their right to spousal support when they signed the prenuptial agreement, they might later dispute this in view of their changed financial circumstances at the time of the divorce. The court will consider whether the provision is fair and reasonable and make a judgment based on the prevailing circumstances of the couple at the time of the divorce.

Difference between a prenuptial and postnuptial agreement

As the name suggests, the prenuptial agreement is entered into between the couple before the marriage, while the postnuptial agreement is executed after the marriage. In fact, a prenuptial agreement can be amended and converted into a postnuptial agreement with the help of a family lawyer after the marriage. The circumstances and financial situation of the couple change a few months or years into the marriage, especially after they have children. You may approach the same prenuptial agreement lawyer to update and convert it to a postnuptial agreement.

How can a prenuptial agreement lawyer help you?

While it is perfectly feasible for the couple to draft and sign the agreement on their own, a prenup lawyer can help you with the following:

Guidance on protecting your financial interests:

A prenup lawyer will explain to you how the property will be segregated into marital and personal property and how the wealth will be divided based on the provisions of property division and equalization under Family Law. He will advise you on how to protect your inherited property and business assets from a potential separation or divorce in the future.

Ensuring the agreement is legally valid and enforceable:

For the agreement to be valid, it is best if the parties are represented by separate prenup lawyers. The terms of the agreement should not go against the provisions of the Family Law and the local provincial laws.

Making sure that the agreement is fair to both parties:

The provisions of the agreement cannot be completely one-sided, putting the interests of one party above the other. If so, the court might deem the agreement unjust and unfair and conclude that the other partner might have signed the agreement under pressure or coercion.

Negotiating the terms and conditions:

Your lawyer can also facilitate the negotiations between the two parties on the terms and conditions of the agreement.

Modifying the agreement, if needed:

If the agreement needs to be modified or converted to a postnuptial agreement, you approach the prenup lawyer again to do so.

Frequently Asked Questions

Is it necessary for us to get separate lawyers when executing the prenuptial agreement?

Yes. It is highly recommended that both partners have separate lawyers representing them when executing the prenuptial agreement. With only one lawyer representing you both, the agreement might be dismissed as one-sided or unfair in the event of a dispute.

What are the reasons for overturning a prenuptial agreement?

Even when there is a prenuptial agreement already in place, the court might reject it for the following reasons:

One of the partners willfully hid some of their financial assets in order to protect them from possible division and equalization in the future.
The terms and conditions in the agreement favour only one of the partners and are, therefore, deemed unfair to the other partner.
There is evidence to suggest that one of the partners signed the agreement under pressure or coercion.
The provisions of the agreement do not comply with the Family Law and the local provincial laws.

Is it possible to modify the prenuptial agreement?

Yes. If both partners agree to the changes, they can modify and amend the agreement at any time. However, they need to do it in writing and get it signed and witnessed to make it legally enforceable.

What happens in a divorce without a prenuptial agreement?

Without a prenuptial agreement, in a contested divorce, the court will follow the provincial laws on property division and equalization. This means that all the marital wealth will be equalized, regardless of disparity in their contributions. This is why you need to execute the agreement with proper guidance from a prenuptial agreement lawyer to protect your financial interests.

We can Help

If you plan to finalize your prenuptial agreement, contact our legal team for assistance. Our experienced prenup lawyers can help ensure that your financial interests and rights are protected and that the agreement is legally valid and enforceable. Contact our legal team today for a consultation.