Understanding Marriage Contracts in Ontario

June 15, 2024

Legal Basis for Marriage Contracts in Ontario

The foundational legal framework for marriage contracts in Ontario is set forth in the Family Law Act. The primary intent of these agreements is to allow parties to deviate from the default rules of property division and spousal support established by law, tailoring their matrimonial rights and responsibilities to better suit their individual circumstances.

Family Law Act and Governance of Marriage Contracts

It is crucial to note that matters related to child custody and access cannot be definitively settled by a marriage contract, as decisions regarding children must be made according to their best interests at the time of the separation.

To enhance understanding, it is essential to explore key sections of the Act:

  • Section 52 of the Family Law Act explicitly permits spouses to enter into marriage contracts that differ from or supplement the Act and to agree on the ownership or division of property either during or at the end of the marriage.
  • Section 56(4) underscores that a provision in a marriage contract purporting to limit a spouse’s rights under Part I (Family Property) or Part II (Matrimonial Home) is unenforceable unless the spouse received independent legal advice before signing the agreement.

Legal Requirements for Valid and Enforceable Marriage Contracts

For a marriage contract to be valid and enforceable in Ontario, several legal requirements must be met:

  • Written Form: The contract must be in writing and signed by both parties. This formality ensures that there is a clear and tangible record of the agreement.
  • Witnessed Signatures: Each signature on the contract must be witnessed, adding an additional layer of authenticity and protection against claims of forgery or coercion.
  • Full Disclosure: Full and frank disclosure of assets is required. Each party must fully understand the financial circumstances of the other, as this transparency is crucial for fair negotiations.
  • Independent Legal Advice: It is highly recommended, though not legally mandatory, that each party receive independent legal advice before signing the contract.

What Can Be Included in a Marriage Contract

  • Division of Property: One of the primary reasons couples opt for a marriage contract is to specify how their property will be divided in the event of separation or divorce. This includes both the division of assets acquired during the marriage and the protection of individual assets brought into the marriage.
  • Spousal Support Obligations: The contract can specify the terms of spousal support, including the amount and duration of support payments. This is particularly important for parties seeking to deviate from the statutory guidelines provided by the Family Law Act.
  • Inheritance Rights: Couples can agree on how their property will be distributed upon the death of one spouse, which can be especially important in second marriages or where there are significant separate assets or children from previous relationships.
  • Debt Responsibility: A marriage contract can outline responsibilities for debts, whether incurred before or during the marriage, specifying who will be responsible for what debts, which is crucial for protecting personal financial stability.
  • Business Interests: For spouses who own businesses, a marriage contract can be used to determine how business assets and operations will be handled in the context of the marriage or a potential divorce.

What Cannot Be Included in a Marriage Contract

  • Child Custody and Access: It’s a common misconception that a marriage contract can definitively settle terms regarding child custody and access. These matters are governed strictly by what serves the best interest of the child at the time of the parents’ separation or divorce and cannot be predetermined.
  • Child Support: Similar to child custody, the terms of child support cannot be unalterably fixed in a marriage contract.

Common Misconceptions about Marriage Contracts

Misconception: A marriage contract can eliminate the need for any court involvement. While a well-drafted marriage contract can simplify and streamline the process of divorce, it does not completely eliminate the potential for court involvement, especially if there are disputes about the contract’s validity or interpretation.

Misconception: The contract is set in stone once signed. Marriage contracts, like any contract, can be subject to revision if both parties agree. Furthermore, a court can set aside provisions of a marriage contract if they are found to be unconscionable, were signed under duress, or if there was a significant lack of disclosure.

Benefits of Having a Marriage Contract

Clarity and Certainty in Financial Matters

  • Prevents Disputes: By agreeing on financial matters upfront, couples can avoid potential conflicts that might arise from differing expectations about money management during the marriage.
  • Enhances Financial Planning: With clear terms set out, partners can plan their financial future more effectively, understanding their financial duties and entitlements from the outset.

Asset Protection

A marriage contract is particularly beneficial in several scenarios:

  • Pre-Marriage Asset Protection: For those entering a marriage with significant assets, a marriage contract can specify that certain property, like inheritances or business interests, is excluded from the marital property, thus not subject to division upon divorce.
  • Securing Family Assets: It helps in safeguarding assets meant to be passed down through family lines, ensuring that they are not entangled in marital disputes.

Protecting Individual Interests and Creating Fair Agreements

Marriage contracts serve not only to protect assets but also to protect individual interests, making the marital agreement fairer for both parties:

  • Tailored Agreements: Each spouse’s unique circumstances can be taken into account, allowing the contract to be customized to reflect individual needs and priorities, which standard legal provisions might not adequately address.
  • Mitigating Future Legal Challenges: A well-drafted marriage contract reduces the likelihood of lengthy and costly legal disputes during divorce proceedings, as terms of the division of property and spousal support are predefined.
  • Spousal Support Arrangements: The contract can specify whether spousal support will be paid, including its amount and duration, which can be particularly important if one partner plans to sacrifice career advancement for the sake of the family.

Steps to Creating a Marriage Contract in Ontario

Step 1: Determine the Need

The first step in creating a marriage contract is to identify why it might be necessary or beneficial. Couples might consider a marriage contract for various reasons:

  • Asset Protection: Individuals entering the marriage with substantial assets, inherited wealth, or family business interests might seek to protect these assets from being subject to division in the event of a divorce.
  • Clarification of Financial Responsibilities: A marriage contract can specify how the couple will handle financial responsibilities and assets during the marriage, including debts, earnings, and property management.
  • Previous Marital Experiences: For those entering a second or subsequent marriage, a marriage contract can help address concerns from previous relationships, particularly when there are children from prior marriages.
  • Future Inheritance: Individuals expecting to receive significant inheritances may want to clarify that these assets will remain separate.

Step 2: Consult with Legal Counsel

Once the need for a marriage contract is established, each party should seek independent legal advice:

  • Understanding Legal Rights: A lawyer can help a party understand their legal rights and obligations under the Family Law Act and how a marriage contract can alter these provisions.
  • Ensuring Fairness: Independent legal advice ensures that each party is fully informed of the terms and consequences of the agreement, helping prevent issues of unfairness or coercion.
  • Validity and Enforceability: A lawyer can guide how to craft an agreement that meets all legal requirements, enhancing its enforceability in court.

Step 3: Draft the Contract

Drafting the marriage contract is a collaborative process that should be approached with openness and transparency. Key considerations include:

  • Full Disclosure: Each party must fully disclose their financial assets and liabilities.
  • Flexible Design: Consider future changes in circumstances and include provisions that allow for adjustments to the agreement if both parties consent.

Step 4: Sign the Agreement

The final step is the formal signing of the agreement, which includes several important legal formalities:

  • Written Document: The agreement must be in writing to be legally valid.
  • Witnessed Signatures: Each party must sign the contract in the presence of a witness. Witnesses must be over the age of 18 and cannot be a party to the contract.
  • Notarization (if applicable): While not always required, notarization can add an additional layer of authenticity and may be advisable in complex cases involving significant assets.

Common Challenges and How to Overcome Them

Emotional Stress

Challenge: Negotiating a marriage contract can be emotionally charged.


  • Open Communication: Start with open and honest discussions about the purpose and benefits of a marriage contract.
  • Professional Guidance: Engaging a therapist or a counsellor during the negotiation process can help address emotional issues constructively.

Imbalance in Bargaining Power

Challenge: An imbalance in financial resources or knowledge between partners can lead to a perception of unfairness or coercion in drafting the marriage contract, potentially affecting its enforceability.


  • Independent Legal Advice: Ensure that both parties have their own lawyers to advocate for their interests and provide knowledgeable counsel.
  • Full Disclosure: Each party should fully disclose their financial situation. Transparency is key to fairness and helps each person make informed decisions.

Resistance to the Idea of a Marriage Contract

Challenge: Sometimes, one partner may be resistant to the idea of a marriage contract, perhaps viewing it as unromantic or distrustful.


  • Education: Educate both parties on the benefits and protections a marriage contract can offer, emphasizing that it’s not a bet against the marriage but a pragmatic measure to address practical realities.
  • Gradual Approach: Introduce the idea slowly and give the resistant party time to adjust to the concept, providing them with resources or testimonials about the positive aspects of such agreements.

Misunderstandings about the Scope of the Agreement

Challenge: Couples often have misconceptions about what can be included in a marriage contract, such as provisions about child custody or unrealistic terms regarding asset division.


  • Legal Clarification: Clear, professional explanations can prevent unenforceable terms from being included.
  • Realistic Expectations: Setting realistic expectations from the start can prevent legal and emotional complications during negotiations.

Approaching Negotiations

Challenge: Negotiations can become contentious if not approached correctly, leading to long-term resentment or dissatisfaction.


  • Mediation: If direct negotiations are tense, consider using a mediator.
  • Collaborative Law: Engage in collaborative law practices where both parties and their attorneys commit to resolving issues cooperatively outside of court, focusing on mutual benefits.

Amending and Enforcing Marriage Contracts

Amending a Marriage Contract

Circumstances for Amendment: A marriage contract in Ontario may need to be amended due to various life changes or shifts in the couple’s circumstances, such as:

  • Changes in Financial Status: Significant changes in the financial situation of either spouse, like a substantial increase or decrease in assets, may necessitate adjustments to provisions regarding asset division or spousal support.
  • Changes in Family Dynamics: The arrival of children, changes in health, or shifts in responsibilities at home might prompt a review and possible amendment of the existing contract.
  • Mutual Agreement to Alter Terms: Couples may simply change their minds about what they want from their agreement as their relationship evolves and matures.

Process for Amendment: To amend a marriage contract in Ontario, the following steps should typically be followed:

  1. Mutual Consent: Both parties must agree to the amendment. A marriage contract cannot be unilaterally altered; mutual consent is mandatory.
  2. Independent Legal Advice: Each party should again seek independent legal advice. This ensures that both individuals fully understand the implications of the proposed changes.
  3. Drafting the Amendment: The amendment should be drafted with the same formalities as the original contract—written, signed by both parties, and witnessed.
  4. Signing and Witnessing: Similar to the original agreement, the amendment must be signed in the presence of a witness to ensure its validity.

Enforcement of Marriage Contracts

Legal Standards for Enforcement: For a marriage contract to be enforced in Ontario courts, it must meet specific legal criteria:

  • Voluntary Execution: The agreement must have been signed without pressure or duress. Both parties should have entered into the contract voluntarily.
  • Full Disclosure: There must have been a full disclosure of assets by both parties at the time of signing.
  • Fairness at the Time of Enforcement: The terms of the contract must not only have been fair at the time of signing but also at the time of enforcement. If circumstances have changed such that the enforcement would be significantly unfair to one party, the court may decide not to enforce the contract.

Court’s Role in Enforcement: Ontario courts will enforce a marriage contract if it adheres to legal standards and there are no grounds for setting it aside, such as fraud, duress, or a lack of understanding. If a dispute arises regarding the enforcement of a marriage contract, the court examines:

  • The Intentions of the Parties: Courts look at what the parties intended to achieve with their contract, based on the wording of the document and the circumstances under which it was created.
  • Equity and Conscience: Even if a contract meets formal legal standards, a court may refuse to enforce it if it would lead to an unconscionable outcome, particularly in light of current circumstances compared to those when the contract was signed.

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