How to Get a Prenup in Ontario: Steps From Start to Signing

You are engaged, or thinking about it, and you want a prenup. The hard part is usually not the idea but the process: who does what, in what order, and how to end up with a document that will actually be respected later.

This article walks through the steps in a sensible order, from the first conversation to signing. It explains how things generally work in Ontario. A lawyer can tell you how they apply to your situation.

What a prenup is called in Ontario

The Family Law Act uses the term marriage contract. Words like prenup and prenuptial agreement are informal names that the Act does not use. A marriage contract is one kind of domestic contract, along with separation agreements, cohabitation agreements, paternity agreements and family arbitration agreements.

People who are married to each other or intend to marry may make a marriage contract. In it they set out their rights and obligations during the marriage, on separation, on annulment or dissolution, or on death. It is not only for people who are not yet married, because couples who are already married may also make one.

What a marriage contract can and cannot cover

A marriage contract may deal with ownership or division of property, support obligations, and any other matter in settling the couple's affairs. Ontario's government adds that it can cover who moves out of the home.

• It may deal with the right to direct the education and moral training of your children.
• It cannot deal with decision-making responsibility or parenting time.
• Any term that tries to limit a spouse's rights under Part II (Matrimonial Home) is unenforceable, including the equal right to possession of the home.

The steps, in order

• Start early. Rushing makes it harder for both people to think clearly, and pressure to sign can later be argued under the general law of contract.
• Decide what you want to cover: property you bring in, gifts or inheritances, the family home, support, and debts.
• Gather and exchange financial information. Ontario's government advises sharing it before signing.
• Each of you should speak to a different lawyer.
• Negotiate the terms and have the contract drafted.
• Review the draft carefully until you both understand what it means.
• Sign it in writing, with both of you signing in front of a witness who also signs.
• Keep a complete signed copy each, along with the financial information you exchanged.

No lawyer is among the formal requirements for validity, which are writing, signatures and a witness. Even so, separate advice is the safer route, and the next articles in this series explain why disclosure and understanding matter.

Why people sign one

Without a contract, the default rules apply. Net family property is the value of what a spouse owns on the valuation date, except excluded property, less debts and less the value of property owned on the date of marriage, other than a matrimonial home. On divorce, nullity or separation with no reasonable prospect of resuming cohabitation, the spouse with the lesser net family property is entitled to one-half of the difference.

A domestic contract can change this. Property the spouses agree by a domestic contract is not to be included is excluded from net family property. That matters for a home owned before marriage, because without a contract its full value is shared unless the spouses agree otherwise.

What to do next

Start the conversation with your partner well before the wedding, and make a list of your assets and debts. Then book separate meetings with family lawyers. If a contract is signed, it can still be challenged on limited grounds, such as a failure to disclose significant assets or debts, or not understanding its nature or consequences. Good preparation reduces that risk.

Frequently asked questions