What Happens If You Sign A Prenup And Get Divorced?

In Canada, a prenuptial agreement, commonly known as a prenup, is a legal contract entered into before marriage. It is a legal document that outlines how assets and financial matters will be handled if your marriage breaks down. While often dealt with negativity, a prenup can make the grieving process simpler and help avoid unnecessary fights. It offers certainty and financial protection for both spouses. 

We hope this guide helps you understand how prenup works in the event of a divorce. 

Asset Division and Financial Arrangements

In Canada, the division of assets in a divorce is governed by provincial and territorial laws. These assets include real estate, personal property like precious jewellery, art, and furniture, financial assets, businesses, inheritance and gifts, debt, future earnings, life insurance, and intellectual property. However, a prenup can override these laws by predetermining how assets will be split. Some situations where it can happen include: 

• Unequal power dynamics: If the prenup was significantly unfair to one party at the time it was signed, Ontario court might override it.  
• Inadequate Legal Representation: If one or both parties did not have proper legal representation (i.e., their own lawyer) when the prenup was signed, the agreement might be considered invalid.  
• Coercion or Duress: Includes situations where there was not enough time to consider the agreement properly before the wedding.
• Non-Disclosure or Misrepresentation: When one party hid assets, lied about their value, or otherwise misrepresented their financial situation. 
• Illegal or Unethical Terms: For example, clauses that attempt to limit child support or custody rights are typically unenforceable.
• Changes in Circumstances: If the financial or health situation of one party changes drastically, the terms of the prenup may not be considered fair anymore.
• Procedural Flaws: When the agreement is not executed according to Ontario family law requirements. 
  
  

How does a prenup affect spousal support and child support? 

Spousal support or alimony can be mentioned in the agreement, including the amount and duration. However, Canadian courts have the discretion to override these terms if they are deemed unfair at the time of the divorce for any of the reasons mentioned above. 

On the other hand, you can’t predetermine child support or custody arrangements. These matters are always decided based on the best interests of the child at the time of the divorce. Any attempt to do so would be considered invalid.

Is getting a prenup a good idea? 

It is a practical choice and offers benefits to both spouses if created ethically. 

1. Protects Pre-Marital Assets: Any assets you bring into the marriage including personal property, inheritances, or investments remain yours in the event of a divorce.

2. Divides Financial Responsibilities: It sets clear expectations about how finances will be handled during the marriage and potential conflicts over money.

3. Protects Against Debt It can protect you from being responsible for debts incurred by your spouse before or during the marriage.

4. Helps in Estate Planning: Ensures that your assets are distributed according to your wishes upon death, especially important if you have children from previous relationships.

5. Reduces Conflict and Legal Costs in Divorce: With most things already agreed upon, your potential divorce will be smoother, quicker, and less expensive.

Begin your marriage with confidence. Let Noori Law craft your prenup in Canada. Contact us today for more details.