Independent Legal Advice for a Prenup: Is It Required in Ontario?

If you have been handed a prenup to sign, you may be wondering whether each of you must see a separate lawyer first, and what happens if one of you does not.

This article separates what the Family Law Act requires from what is strongly recommended, and explains how missing advice can come up if the agreement is later challenged.

What the law requires to sign

A domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed. None of those formal requirements is a lawyer. The statute therefore does not make legal advice a condition of a valid marriage contract, and it would be wrong to say it is legally required.

"Prenup" is an informal name. The Act uses the term "marriage contract". Two people who are married to each other or intend to marry may make one, so it can be signed before or after the wedding. Ontario's government guidance says both spouses must sign in front of a witness, and the witness must also sign. Once it is signed, the couple must follow it.

What government guidance recommends

Even though advice is not a formal requirement, Ontario's government advises that each partner speak to a different lawyer, and that the partners exchange financial information, before signing a marriage contract or cohabitation agreement. Using separate lawyers means each person has someone looking after their own interests, rather than one lawyer trying to serve both.

This matters because a marriage contract can deal with ownership or division of property, support obligations, and any other matter in the settlement of the couple's affairs. Spouses can also agree by domestic contract that certain property is not included in net family property. Terms like these can change what each of you would otherwise receive, so it helps to understand them before you sign.

How missing advice can matter later

The Act lists three grounds for setting a domestic contract aside, and legal advice is not one of them. On application, a court may set aside a domestic contract or a provision in it on these grounds:

• A party failed to disclose significant assets, or significant debts or other liabilities, that existed when the contract was made.
• A party did not understand the nature or consequences of the contract.
• Otherwise in accordance with the law of contract, which is the statutory route for arguments such as duress or pressure to sign.

A lawyer's explanation of the agreement and a clear exchange of financial information may bear on those questions, but how a court treats them depends on the facts of each case. The Act sets no specific list of disclosure documents for a marriage contract, so what counts as enough disclosure is something to discuss with a lawyer. These grounds apply despite any clause in the contract saying otherwise.

Special situations

• A minor can enter a domestic contract only with the court's approval.
• For a mentally incapable person, a guardian of property or an attorney under a continuing power of attorney for property may enter the contract.
• In other cases of mental incapacity, the Public Guardian and Trustee has power to act.
• A contract made outside Ontario has its formalities and validity governed by its proper law, but the setting-aside rules in section 56 still apply in Ontario.

Advice cannot make every term enforceable either. A term limiting a spouse's rights in the matrimonial home is unenforceable, and a marriage contract cannot decide decision-making responsibility or parenting time. A court may also set aside a support waiver on certain grounds, such as unconscionable circumstances.

Terms about children are open to review too. When deciding a matter about a child's education, moral training, decision-making responsibility or parenting time, a court may disregard a provision of a domestic contract if doing so is in the child's best interests. For child support, a court may disregard a provision that is unreasonable having regard to the child support guidelines.

What to do next

• Ask for the draft well before the signing date so you have time to read it.
• Book your own lawyer, separate from your partner's.
• Prepare a full list of your assets and debts, and ask for the same from your partner.
• Ask your lawyer to explain in plain words what each clause does and what you give up.
• Say so if you feel pressured, and raise it before signing rather than after.
• Keep the signed, witnessed copy and all financial information exchanged.

If you are searching for a lawyer near you, look for one who regularly handles marriage contracts, and ask what they will review and explain before you sign. How this applies depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions