Family law: What protection does a prenup offer?

People take out car insurance because an accident might occur, not because they think it will happen. Why then, do some people avoid signing — or even discussing — prenuptial agreements? The concept is the same; it is insurance against loss and damage in the event of a divorce. Ontario couples who are considering marriage or a common-law relationship might benefit from discussing marital agreements and other family law matters before tying the knot.

Ending marital relationships is traumatic, but if real estate, investments, business interests, child rearing and even pet custody are addressed in a prenuptial agreement, a separation — if it should ever happen — can be less stressful. Contentious matters will be limited to those not included in a prenup. Some couples may not realise that such an agreement can also protect the rights of a surviving spouse upon the death of the other.

Divorcing couples who chose not to sign a marital agreement may have to accept the fact that the legal system will divide their assets. This may not be ideal, especially if one spouse entered the marriage with a substantial number of high-value assets that may be subject to equal division upon divorce. The same dilemma might face those who enter into a second or subsequent marriage with inheritances for children to protect.

Prenuptial and cohabitation agreements have limits to what can be included. A family court will typically make child-related decisions such as support and custody. However, matters related to the upbringing of a child are often included in these agreements. A consultation with an experienced Ontario family law lawyer can provide answers to questions about marital agreements. When such a contract is drafted and signed, it is generally best for each spouse to have legal counsel present.