*The information provided below does not constitute legal advice
In Ontario, a marriage contract—colloquially referred to as a prenuptial agreement—is a practical and empowering way for couples to define their financial rights and responsibilities before or during marriage. Governed by the Family Law Act in Ontario, a marriage contract allows spouses to set out how property will be divided, how debts will be handled, whether spousal support will be paid, and how other financial matters will be managed if the relationship ends.
Family Property Division
Under the Family Law Act, married spouses in Ontario are subject to a statutory equalization regime upon separation. Rather than dividing each asset in half, the law requires each spouse to calculate their “net family property,” being the value of all assets owned on the date of separation (after deducting debts and certain exclusions), minus the value of property owned on the date of marriage. The spouse whose net family property is higher must generally pay the other spouse one-half of the difference, thereby equalizing the growth in wealth accumulated during the marriage.
Spouses may modify or opt out of this default regime by entering into a valid marriage contract. Through a marriage contract, couples can agree on how property will be divided, exclude certain assets from equalization, or set out an entirely different framework for resolving financial issues, provided the agreement complies with the formal requirements of the Family Law Act and is not otherwise subject to challenge.
Spousal Support
In Ontario, spousal support is governed by the Family Law Act and the federal Divorce Act (for married spouses seeking a divorce). A spouse may be entitled to support where there is a financial need, a compensatory claim arising from roles assumed during the relationship, or a contractual basis for support. Courts consider factors such as the length of the relationship, the parties’ roles and contributions, their incomes and earning capacities, and the objective of promoting self-sufficiency where reasonable. The amount and duration of support are often guided by the Spousal Support Advisory Guidelines, though these are not strictly binding.
Importantly, spouses can modify or even waive spousal support through a properly drafted marriage contract. While courts generally respect such agreements, they retain the discretion to set aside or vary support provisions in limited circumstances—particularly where there was inadequate financial disclosure, one of the parties did not understand the nature or consequences of the agreement, or where enforcing the agreement would be unconscionable at the time of separation, among other grounds.
Children
Although a marriage contract can address many financial issues between the parties, there are limits when it comes to children. The Ontario Family Law Act provides that couples can outline their intentions or general principles regarding parenting in a marriage contract. However, a court can disregard any provision of a marriage contract respecting the education, moral training, decision-making responsibility or parenting time where the provision is not in the best interests of the child.
Similarly, the Family Law Act provides that a court can disregard any provision of a marriage contract respecting child support. Child support is considered the right of the child, not the parent, and any agreement that attempts to limit or eliminate child support in a manner that is inconsistent with the applicable Child Support Guidelines can be disregarded by the court.
Far from being unromantic, a well-drafted marriage contract promotes transparency, clarity, and peace of mind. It can protect family businesses, inheritances, and assets acquired before marriage, while ensuring both parties fully understand their legal rights and obligations.
To be legally enforceable in Ontario, a marriage contract must be in writing, signed by both parties, and witnessed. Full financial disclosure and independent legal advice are strongly recommended to help safeguard the agreement from future challenges.
Whether you are entering into a first marriage, bringing significant assets into a relationship, or planning for blended family considerations, a thoughtfully prepared marriage contract can provide certainty and security for your future together.
Plan Your Marriage with Confidence and Certainty
A marriage contract can help couples enter marriage with clarity, openness, and a shared understanding of their legal and financial rights. At Gibson Tanner Rabin, our family law team assists with carefully drafted marriage contracts that protect assets, support future planning, and help reduce uncertainty if circumstances change.
Reach out today to speak with our team about preparing or reviewing a marriage contract that reflects your goals.
