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Does my marriage contract have to be a fair bargain?

It should be quite self-evident that a marriage contract is in essence a contract. As such, general principles of the law of contract apply. One such principle in particular which may adequately answer this question is the doctrine of unconscionability – the idea that the bargain in a contract ought not to be unfairly one-sided to the point of shocking the Court’s conscience.

With this in mind, it seems a marriage contract should not unduly favor one party’s interests over the other. The problem is that this is the goal of... MORE »

Most Recent FAQs

I do not like my marriage contract. Can a court overturn it?

When a party to a marriage contract is not satisfied with the terms of the agreement, he or she may seek to “set aside” the contract. Section 56(4) of the Family Law Act prescribes the circumstances in which a Court may grant such relief, setting aside the entire agreement, or certain provisions.

According to s.56(4), a Court may set aside a domestic contract (for e.g., a marriage contract) or provision therein:

  1. if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic... MORE »

What is required for a marriage contract to be binding?

In Ontario, a marriage contract will be legally binding if the following conditions are met:

  • It is in writing;
  • Each party made full and frank disclosure about their financial situation to the other;
  • It is entered into voluntary, meaning no duress or undue influence;
  • Each party had legal capacity and understood the contract;
  • Each party received independent legal advice;
  • The bargain is not unconscionable; and
  • It is properly signed in the presence of witnesses.
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Are there any limits on marriage contracts?

While spouses can make any type of financial arrangement in a marriage contract, there are a couple major items which cannot form party of a valid marriage contract. One, parties to a marriage contract cannot pre-determine custody or access to the children. And, two, a marriage contract cannot put any limits on the rights of either party to occupy the matrimonial home. These legal prescriptions are enshrined in section 52(2) and section 52(1)(c) of the Family Law Act, respectively.

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Why enter into a marriage contract?

A marriage contract is a prudent and valuable planning tool for protecting certain property in the event of separation or divorce. Some reasons to enter into one include the following:

  • To divide property brought into the marriage and property earned throughout the marriage in a manner which differs from that of the statutory regime of equal division;
  • To protect one party’s substantial wealth or asset from division with the other party on separation or divorce, or to avoid the complicated exercise of accounting for the increase in the value of existing property,... MORE »