Do We Need Separate Lawyers for a Prenup in Ontario?

When you are planning a wedding, paying for two lawyers can feel like doubling a cost for one document. It is natural to ask whether you can share one lawyer to keep things simple and affordable.

This article explains what independent legal advice means, how it connects to whether a prenup holds up, and what a legal certificate is. It is general information and cannot replace advice about your own situation.

What independent legal advice means

Independent legal advice generally means that each person talks to their own lawyer instead of sharing one. How this works when one lawyer is asked to act for both of you depends on your situation, so it is worth confirming with a lawyer.

Ontario's guidance is direct on this point: it advises that each partner use a different lawyer and that the partners exchange financial information before signing a marriage contract or cohabitation agreement.

Why it matters for enforceability

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

Under the Family Law Act, a court may set aside a domestic contract or a provision in it on application if a party failed to disclose significant assets or significant debts or other liabilities, if a party did not understand the nature or consequences of the contract, or otherwise in accordance with the law of contract.

How separate lawyers affect these grounds depends on your situation, so it is worth confirming with a lawyer. The risk with one shared lawyer is that one person later says they never really understood the terms or never had advice aimed at their own interests.

In one Court of Appeal decision about a cohabitation agreement, the property clauses were set aside because the trial judge found overwhelming evidence that neither party understood the agreement's consequences. That case involved a cohabitation agreement, so it is an illustration of the not-understanding ground, not a rule about prenups.

One lawyer or two: comparing the risks

The lower upfront cost of one lawyer can be outweighed if the contract is later challenged. How much weight a court would give any of this depends on the facts.

What about a lawyer's certificate?

Some couples hear that a lawyer must sign a certificate saying advice was given. The formal signing steps you can count on are that both spouses sign in front of a witness and the witness also signs.

Whether to obtain certificates in your case is something your lawyer can confirm. Even with one, a court looks at the substance: whether disclosure was made and whether the person understood what they signed.

Setting aside is also a two-step process. First, the applicant must show one of the listed circumstances, which is necessary but not sufficient. Second, the court decides whether to exercise its discretion to set the agreement aside, and fairness can be considered at that stage.

Ways to keep costs reasonable

If cost is the worry, there are practical ways to manage it without giving up separate advice.

• Agree on the main business points together before involving lawyers, so there is less back-and-forth.
• Prepare your financial information in an organized way before the first meeting.
• Ask each lawyer about their fee structure and what is included.
• Let one lawyer prepare the first draft while the other reviews it, as long as each of you has your own lawyer.
• Do not leave it to the last week before the wedding, when rushing adds cost and pressure.

What to do next

• Decide together that you will each use a different lawyer, in line with Ontario's guidance.
• Choose your own lawyer, not one picked by your partner.
• Gather and exchange financial information before the drafting meeting.
• Ask your lawyer to explain, in plain language, what you would have without the contract and what you give up.
• Plan the signing with a witness who will also sign.

Frequently asked questions