prenuptial agreement

What is a Prenuptial Agreement?
A prenuptial agreement is a contract between two parties in a relationship, established prior to the marriage, that stipulates the course of action for premarital assets should the marriage end. Though not a mandatory requirement, a prenuptial agreement is recommended in instances where one or both parties have significant proprietary and personal assets that they wish to have protected should a spouse die or terminate the relationship. The document is legally binding and can be amended to a postnuptial
agreement should the terms of the agreement change.

Why should I get a Prenuptial Agreement?
A prenuptial agreement is by no means a required step before marriage. For some individuals,the subject of prenuptial agreements are uneasy discussions because it implies that a marriage is starting on uneasy footing. For others, it is a precautionary step to avoid a nasty legal battle in the unlikely event that a divorce takes place. While determining whether or not a prenuptial agreement is right for you is solely a decision between you and your spouse, it is a course of action that works to protect both
parties’ interest prior to the marriage.

If you are considering why you should obtain a prenuptial agreement consider the following reasons:

  • One or both spouses enters the marriage with significant personal assets of his or her own
  • One or both spouses enters the marriage with property ownership
  • One or both spouses has children from previous relationships and is concerned with matters of
    future inheritance
  • One or both spouses expect to inherit a family business or property, or a trust in the future

How soon before marriage should I get a Prenuptial Agreement?
While there is no fixed time to execute a prenuptial agreement, lawyers recommend commencing the process at least three to four months prior to the marriage to allow enough time to collect financial disclosure and to avoid pressuring a spouse to sign the contract.

Do I need Financial Disclosure for a Prenuptial Agreement?
Prenuptial agreements usually pertain to the management of financial affairs. As such, you cannot enter an agreement with your spouse without having disclosed financial documents because it is critical for making sense of the terms of the agreement. Financial disclosure may include information such as a list of your income, assets, debts, and liabilities.

Should I retain my own lawyer?
While some jurisdiction allows for parties to draft prenuptial agreements independently, Canadian law prohibits parties from sharing lawyers when executing the agreement. The presumption is that even though the parties may agree to the terms therein, their interests are not the same. It is always in the parties’ best interest to seek independent legal counsel to revise and execute the agreement.

Does my prenuptial agreement need to be notarized?
Although a notary is not needed for a prenup, both parties must have separate witnesses and must therefore execute the document separately. It is common practice for both parties to have their agreement witnessed by the lawyer retained for independent legal advice.

I am already married, can I still obtain a prenuptial agreement?
Once parties have married, they can obtain what is referred to as a postnuptial agreement. Marriage automatically grants certain legal rights to a couple that is not applicable prior to getting married. However, with a postnup, a couple can settle their affairs relating to finances, property, debt, assets, and children in the event of a separation or divorce.