How to Get a Prenup in Ontario: Step-by-Step Process

A prenup is the everyday name for what Ontario calls a marriage contract. If you are engaged and thinking about one, the hard part is often not the legal document itself but knowing what to do first, and who needs to do what.

This article walks through the process in the order it usually happens: the first conversation, sharing financial information, drafting, getting advice and signing. It is general information, not advice on your situation, and a lawyer can confirm how it applies to you.

What a marriage contract is, and what it can cover

The Ontario government describes a marriage contract as a legal document signed by couples before they get married to protect their rights if they split up, including rights to property. Couples in a common-law relationship can sign a similar document called a cohabitation agreement.

Knowing the limits helps you decide what to talk about before you ever meet a lawyer.

Without a contract, married spouses are generally under the equalization rules, which say property acquired during the marriage must be split equally when the marriage ends for any reason, with courts departing from that only in very special situations. A marriage contract is one way couples agree to something different.

The steps in order

There is no single required script, but the sequence below reflects how the pieces fit together.

• Talk openly first. Decide together what you want the contract to deal with, such as property you each bring in, a business, an expected inheritance, or support.
• Gather your financial information. Make lists and collect statements for assets, debts and income.
• Exchange that information with each other before anything is signed.
• Each person finds their own lawyer. Ontario's guidance advises that each partner use a different lawyer.
• One side's lawyer prepares a draft, and the other side's lawyer reviews it and suggests changes.
• Negotiate the terms until both of you understand and accept them.
• Sign the final version in front of a witness, with the witness also signing.

Why disclosure comes before drafting

Drafting a contract without knowing what each of you owns and owes is guesswork. Sharing financial information first lets the terms fit your real situation, and Ontario's guidance advises exchanging it before signing.

It also protects the contract later. A court can set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets, or significant debts or other liabilities, that existed when the contract was made. The separate article on financial disclosure goes into this in more detail.

Signing it properly

Both spouses must sign the marriage contract in front of a witness, and the witness must also sign. Plan the signing as its own event rather than something squeezed in on the way to the wedding.

Later changes need the same care. Any change must also be in writing and witnessed. In one Court of Appeal decision involving a cohabitation agreement, a later informal arrangement did not change the contract because it was not in writing, signed by the parties and witnessed. If your plans shift after you sign, update the document properly instead of relying on a casual agreement.

What happens after you sign

Once signed, the contract must be followed. If the spouses separate and disagree about it, a judge may need to decide.

If the contract includes support terms and you want the Family Responsibility Office to enforce them, the contract must be filed with the Ontario Court of Justice or the Superior Court of Justice using form 26B, and then registered with the office. That office cannot change the terms itself, so changing support means negotiating a new contract and filing it with form 26B.

Child support is a separate point. Under the Divorce Act, a child support order must follow the applicable guidelines, so child support is set by the court under those guidelines rather than fixed by the parents' contract.

What to do next

• Start the conversation early, well before the wedding date, so no one feels rushed.
• List your assets, debts and income and gather supporting documents.
• Each of you should contact your own lawyer to book a meeting.
• Write down what matters most to each of you, such as a home, a business or an inheritance.
• Keep copies of everything you exchange and of the signed contract.

A lawyer can tell you how a contract would work given your property, family and plans, and can confirm anything that depends on your facts.

Frequently asked questions