What Is a Marriage Contract? A Plain Guide for Ontario Couples

You may have heard the words prenup, prenuptial agreement or marriage contract and wondered whether they mean the same thing. They are closely related, and the details matter, because a marriage contract can change how property and support are handled if a relationship ends.

This guide explains in plain words what a marriage contract is in Ontario, who uses one, what it can cover and when it applies. It is general information, not advice on your own situation.

The short answer: what a marriage contract is

A marriage contract is a written agreement between two people about their rights and obligations as a couple. In Ontario, the Family Law Act uses the term marriage contract and groups it with other domestic contracts, such as separation agreements and cohabitation agreements.

Prenup and prenuptial agreement are informal names. The Act does not use them, but Ontario's government describes a marriage contract as a document couples sign before marrying.

Who can make one

Two people who are married to each other, or who intend to marry, may make a marriage contract. It is not limited to the time before a wedding, since people who are already married may also make one.

Unmarried couples have a related option. Common-law partners can set their property rights by a cohabitation agreement. If the people who made a cohabitation agreement later marry each other, the agreement is deemed to be a marriage contract.

What a marriage contract can cover

In a marriage contract, the couple can agree on their rights and obligations under the marriage, on separation, on annulment or dissolution of the marriage, or on death. Topics can include:

• Ownership of property and how it is divided.
• Support obligations.
• Who moves out of the home.
• The right to direct the education and moral training of the couple's children.
• Any other matter in the settlement of the couple's affairs.

There are limits. A marriage contract cannot say who will have decision-making responsibility or parenting time for children. Any term that tries to limit a spouse's rights in the matrimonial home under Part II of the Act is unenforceable.

When a marriage contract takes effect

A marriage contract is a contract, so it has to be made properly. It is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's government guidance says both spouses sign in front of a witness, and the witness also signs. Once it is signed, the couple must follow it.

Many of its terms matter most later, because the contract can set out rights on separation, on annulment or dissolution, or on death. On death, a surviving spouse must choose between taking under the will and receiving the equalization entitlement under the Act, so a contract that sets rights on death is worth discussing with a lawyer.

Where a contract deals with a matter also dealt with in the Family Law Act, the contract prevails, unless the Act provides otherwise. A court can still set a contract aside on certain grounds, such as failure to disclose significant assets or debts, or a party not understanding what they signed.

What to do next

If you are thinking about a marriage contract, a few practical steps help you start well.

• Decide what you want it to cover, such as property, debts or support.
• Gather information about your assets and debts, and expect to share it.
• Ontario's government advises that each partner speak to a different lawyer and that you exchange financial information before signing.
• Allow enough time to read, question and negotiate the terms.
• Plan for a proper signing in front of a witness.

A lawyer can explain how the default rules would apply to you and whether a contract makes sense for your situation.

Frequently asked questions