Postnuptial Agreements in Ontario: Signing a Contract After Marriage

You are already married, and you wish you had put some financial arrangements on paper before the wedding. The good news is that the timing is not a barrier in Ontario.

This article explains what people usually call a postnuptial agreement, what it can and cannot cover, and how it differs from a separation agreement. A lawyer can tell you how it applies to your own situation.

Yes, you can sign after the wedding

The Family Law Act uses the term marriage contract. Words like prenup and prenuptial agreement are informal names that the Act does not use. Two people who are married to each other or intend to marry may make a marriage contract.

A marriage contract is not limited to the time before the wedding, because people who are already married to each other may also make one. A postnuptial agreement is simply a marriage contract signed after the wedding.

What it can and cannot cover

A marriage contract can set out your rights and obligations during the marriage, on separation, on annulment or dissolution of the marriage, or on death. It may deal with ownership or division of property, support obligations, and any other matter in settling your affairs.

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

Even where a contract covers children or support, a court can look at those terms again. It may disregard a term about a child's education, moral training, decision-making responsibility or parenting time if that is in the child's best interests. It may also disregard a child support term that is unreasonable having regard to the child support guidelines.

How it differs from a separation agreement

Both are domestic contracts under the Family Law Act, along with cohabitation agreements, paternity agreements and family arbitration agreements. The difference is mostly about purpose and timing. A marriage contract can be made by people who intend to marry or who are already married to each other, and it can set rights and obligations on separation, annulment, dissolution or death. A separation agreement is made as part of a separation.

Without any contract, the default rules apply. 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, which includes both a marriage contract and a separation agreement, can exclude property from net family property if the spouses agree that it is not to be included. A court may award more or less than half the difference if equalizing would be unconscionable, and one listed factor is a written agreement between the spouses that is not a domestic contract.

Making it enforceable and keeping it solid

A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. The government's guidance says both spouses sign in front of a witness, and the witness also signs.

A lawyer is not one of the formal requirements. Even so, Ontario's government advises that each partner speak to a different lawyer and that you exchange financial information before signing.

A court may set aside a 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, if a party did not understand its nature or consequences, or otherwise in accordance with the law of contract. A clause in the contract cannot remove that power.

What to do next

• List your assets and debts and share them honestly with your spouse.
• Decide what you want to cover: property, support, the home, or what happens on death.
• Each speak with your own lawyer before signing.
• Sign in writing in front of a witness who also signs.
• Keep a copy of the signed contract in a safe place.

Frequently asked questions