Can we sign a marriage contract about the matrimonial home before we get married?

Yes. Ontario's Family Law Act allows married or intending-to-be-married spouses to enter into a marriage contract that deals with ownership and division of property, including the matrimonial home. A marriage contract signed before the wedding takes effect when the parties marry.

There are limits, however. A marriage contract cannot require one spouse to give up their right to possession of the matrimonial home while the parties are still living together. It can, however, specify what happens on separation — for example, that one spouse will keep the home, that the pre-marriage value is protected from equalization, or that certain properties will not be treated as matrimonial homes.

For a marriage contract to be enforceable, both parties must sign it in writing, before a witness, and courts expect each party to have had independent legal advice. Full financial disclosure between the parties is also essential. A contract that a court later finds was signed without disclosure or under pressure can be set aside. If you are entering a marriage and want to protect a pre-owned property from matrimonial home treatment, a marriage contract with proper legal advice is the right tool.