- A marriage contract in Ontario can deal with support, but a court can still set aside a support provision or waiver on certain grounds.
- The grounds include unconscionable circumstances, a waiver by or for a dependant who qualifies for public support, and support in default.
- A contract can also be set aside for non-disclosure, lack of understanding, or under general contract law, and a clause cannot remove that power.
Being asked to sign away spousal support before or during a marriage is a big decision. It is natural to wonder whether the waiver will really hold up years later, when your life may look very different.
In Ontario, a marriage contract can deal with support, but a waiver is not automatically final. This article explains how the Family Law Act treats support waivers, when a court can override them, and what you can do before you sign.
Can a marriage contract deal with spousal support?
Yes. Under the Family Law Act, people who are married to each other or intend to marry may make a marriage contract, and it may deal with support obligations. "Prenup" is an informal name; the Act uses the term marriage contract.
A marriage contract is not limited to the time before the wedding. People who are already married may also make one.
Where a domestic contract deals with a matter that the Family Law Act also deals with, the contract generally prevails, unless the Act provides otherwise. Support is one area where the Act does provide otherwise, as the next section shows.
When a court can set aside a support waiver
Under section 33(4) of the Family Law Act, a court may set aside a support provision in a domestic contract, or a waiver of the right to support, on three grounds.
| Ground | What it means |
|---|---|
| Unconscionable circumstances | The provision or waiver results in unconscionable circumstances. |
| Public support | The waiver was made by or for a dependant who qualifies for an allowance for support out of public money. |
| Default | Support under the contract is in default when the application is made. |
So a waiver can be enforced in many cases, but it does not bind a court if one of these grounds is shown. Whether a particular waiver meets a ground depends on the facts, and a lawyer can help you assess that.
Other ways the whole contract can be challenged
Separately, a court may set aside a domestic contract or a provision in it on application on three grounds.
- A party failed to disclose significant assets, or significant debts or other liabilities, existing 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 route for arguments such as duress or pressure to sign.
A clause in the contract cannot take away the court's power to set it aside on these grounds. Arguments about timing or pressure are decided case by case.
Married spouses who divorce: the Divorce Act
If married spouses divorce, the federal Divorce Act applies. When deciding spousal support, a court considers any order, agreement or arrangement relating to support of either spouse. An agreement is a factor the court weighs, not a bar to support.
Unmarried partners cannot use the Divorce Act. Under Part III of the Family Law Act, spouse for support purposes includes unmarried partners who cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child. A cohabitation agreement between partners who later marry is deemed to be a marriage contract.
Child support is different. A court may disregard a contract provision on child support if it is unreasonable having regard to the child support guidelines.
What to do before you sign
A marriage contract is unenforceable unless it is in writing, signed by the parties and witnessed. Once signed, the couple must follow it. A lawyer is not a formal requirement, but Ontario's government advises that each partner speak to a different lawyer and that you exchange financial information before signing.
- Ask for full financial information from your partner and share yours.
- Read the support clause and ask what it would mean if your circumstances changed.
- Get your own lawyer, separate from your partner's.
- Do not sign until you understand the contract and its consequences.
- Keep a signed copy of the contract and the financial information exchanged.
Frequently asked questions
Can a prenup waive spousal support in Ontario?
A marriage contract may deal with support, including a waiver. However, a court may set aside a support provision or waiver if it results in unconscionable circumstances, or on the other grounds in the Family Law Act.
Does a signed waiver stop a court from ordering support if I would need public assistance?
Not necessarily. A court may set aside a waiver made by or on behalf of a dependant who qualifies for an allowance for support out of public money.
Do I need a lawyer for the contract to be valid?
The formal requirements are writing, signatures and a witness, and a lawyer is not one of them. Ontario's government still advises that each partner speak to a different lawyer.
Can the contract say I cannot challenge it later?
No. The court's power to set aside a domestic contract applies despite any agreement to the contrary.
Sources
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
- Family Law Act, s. 52(1) — Ontario e-Laws
- Divorce Act, s. 15.2(4)(c) — Justice Laws (federal)
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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