Are pre-nuptual agreements useless in Ontario (Canada)?
April 8, 2013 1:05 PM Subscribe
We'll be getting married this summer. My fiance and I are very excited about this. I have some background in financial planning, and she's very savvy financially herself. I have always understood that's a good idea to have a pre-nuptual agreement to cover division of assets, care of possible future children, and so on. This is just to cover our bases ahead of time. A lawyer we just called told us not to bother with it at all, and that pre-nuptual agreements are useless in Ontario, Canada. Is this true?
He explained that courts in Ontario don't take prenups into account most of the time, and if either party has issue with it later on its not worth the paper its written on.
(Neither of us is "rich", nor do we have much in the way of assets. This is purely for planning purposes, and to make clear what were to happen if we were to separate. We plan on a long, happy marriage. We're just planners who work in industries that see a LOT of divorces, so we want to avoid pitfalls.)
He explained that courts in Ontario don't take prenups into account most of the time, and if either party has issue with it later on its not worth the paper its written on.
(Neither of us is "rich", nor do we have much in the way of assets. This is purely for planning purposes, and to make clear what were to happen if we were to separate. We plan on a long, happy marriage. We're just planners who work in industries that see a LOT of divorces, so we want to avoid pitfalls.)
Matrimonial property is under provincial jurisdiction, and I don't know much about Ontario law on it. I can tell you that in BC, there's not much point in prenups, except under very limited circumstances. A prenup won't be useful for care of future children because the "best interests of the child" test overrides everything else. If you ever get divorced, the single most important thing you can do, from a financial and probably emotional point of view as well, is avoid courts.
posted by smorange at 1:30 PM on April 8, 2013
posted by smorange at 1:30 PM on April 8, 2013
This page from a Canadian lawyer suggests that not all lawyers would agree with that advice.
But the concept of a prenup when you have no special conditions - unequal assets, children from previous relationships - bewilders me. Yes, it's unrealistic to say you'll never get married. If a zero percent probability of divorce was a precondition, no one would ever marry. But if you're not absolutely sure that you're marrying someone who would be civil to you if you did split up, you might want to rethink it.
posted by Mr.Know-it-some at 1:34 PM on April 8, 2013 [1 favorite]
But the concept of a prenup when you have no special conditions - unequal assets, children from previous relationships - bewilders me. Yes, it's unrealistic to say you'll never get married. If a zero percent probability of divorce was a precondition, no one would ever marry. But if you're not absolutely sure that you're marrying someone who would be civil to you if you did split up, you might want to rethink it.
posted by Mr.Know-it-some at 1:34 PM on April 8, 2013 [1 favorite]
I actually really like the idea of a prenup for every couple, regardless of whether or not it might be superseded by local laws. But it sounds as though what you're actually after is the spirit of the thing: deciding now, while you're united by your love for one another, how you'd like to treat one another if that love ever ends, rather than making those decisions later, when you might be hurt or upset or angry. If you're both basically good people, the spirit of that agreement should bind you emotionally and morally even if the law allows (or requires) one or both of you to do something different.
I agree that you need some real legal advice about whether or not your document would be binding before you create it. However, even if it's not binding, I think that making a list of issues that would come into play if you ever split up, then having an in-depth discussion and coming to an agreement about how you'd both want to handle it, could fit into the general pre-marital counseling and planning that all couples should do. Talk now about how you want to raise any potential future kids, and how you'd want to raise them if you had to raise them while not married to one another. Talk about your financial planning, retirement, whether one of you might take time off to be at home with your children, what you would do if one of you got sick and couldn't work, whether you want to help out other family members who might need financial help, etc., and talk about how those plans would or wouldn't change if your relationship changed. All of the things that would go into a prenup are things a couple should discuss before getting married anyway. So, have all of those discussions, in addition to figuring out whether or not you can legally bind your future selves to what you've decided now.
posted by decathecting at 1:43 PM on April 8, 2013 [6 favorites]
I agree that you need some real legal advice about whether or not your document would be binding before you create it. However, even if it's not binding, I think that making a list of issues that would come into play if you ever split up, then having an in-depth discussion and coming to an agreement about how you'd both want to handle it, could fit into the general pre-marital counseling and planning that all couples should do. Talk now about how you want to raise any potential future kids, and how you'd want to raise them if you had to raise them while not married to one another. Talk about your financial planning, retirement, whether one of you might take time off to be at home with your children, what you would do if one of you got sick and couldn't work, whether you want to help out other family members who might need financial help, etc., and talk about how those plans would or wouldn't change if your relationship changed. All of the things that would go into a prenup are things a couple should discuss before getting married anyway. So, have all of those discussions, in addition to figuring out whether or not you can legally bind your future selves to what you've decided now.
posted by decathecting at 1:43 PM on April 8, 2013 [6 favorites]
Response by poster: But the concept of a prenup when you have no special conditions - unequal assets, children from previous relationships - bewilders me. Yes, it's unrealistic to say you'll never get married. If a zero percent probability of divorce was a precondition, no one would ever marry. But if you're not absolutely sure that you're marrying someone who would be civil to you if you did split up, you might want to rethink it.
I've read a few times over the years that every marriage should have a pre-nup agreement in place. I'm very certain that my partner and I would be civil if we split up. I don't have any doubts, and wouldn't be marrying her if I did!
We're exploring this because we want to ensure that we make sound decisions for ourselves, as well as any potential future progeny. There isn't anyone (or any family member) telling us to do this, as neither of us comes from rich families, either.
So we want to explore it ahead of time, because these things are much, much easier to set up when it's not urgent or necessary (similar to setting up a will, or managing your health, etc).
posted by smitt at 2:13 PM on April 8, 2013
I've read a few times over the years that every marriage should have a pre-nup agreement in place. I'm very certain that my partner and I would be civil if we split up. I don't have any doubts, and wouldn't be marrying her if I did!
We're exploring this because we want to ensure that we make sound decisions for ourselves, as well as any potential future progeny. There isn't anyone (or any family member) telling us to do this, as neither of us comes from rich families, either.
So we want to explore it ahead of time, because these things are much, much easier to set up when it's not urgent or necessary (similar to setting up a will, or managing your health, etc).
posted by smitt at 2:13 PM on April 8, 2013
Yeah, in Ontario pre-nups are pretty much unenforcable unless they already agree with the contemporary (at time of seperation) family law. There is a lot of case law in Ontario and across Canada on this. You can structure a pre-nup according to the laws and guidelines now in effect (and always choosing the mid-range or high-end of support) but forget about anything to do with custody as that is always done in the best interests of the children. Use independent legal advice for each of you and have it written in the agreement that you understand it is only a guideline.
posted by saucysault at 2:20 PM on April 8, 2013 [1 favorite]
posted by saucysault at 2:20 PM on April 8, 2013 [1 favorite]
I've been married over a decade and if we had done a pre-nup (we didn't) it would have made a bunch of assumptions and really not be applicable to our current situation. the direction we thought our life would go in has turned out to be very different. Even people getting a divorce rarely have a "one-shot and it's settled" kind of deal, especially if there are children involved. Rather than a contract it is more of a conversation "is sending the children to piano lessons important to both of us? Then we will prioritise money towards that goal; if only one co-parent wants piano and the other wants karate then maybe the parents pay for the expense they believe in and schedule the activities during their parenting time." And agreement now to do week-about shared parenting may not work in five years when one parent is working too long hours, or has a new baby with their new partner or moves to their new partners dream house outside the children's school catchment area. Any agreement would have to be incredibly flexible, unlike a will which is much more final or health directives that are guidelines but ultimately leaving your health in the care of specific person empowered to make decisions according to your wishes as they understand them.
posted by saucysault at 2:45 PM on April 8, 2013 [3 favorites]
posted by saucysault at 2:45 PM on April 8, 2013 [3 favorites]
"I've read a few times over the years that every marriage should have a pre-nup agreement in place"
I'm an attorney (not yours!) who practiced in estate planning for several years, in a U.S. jurisdiction, and this is an absolutely ridiculous claim. I turned away far more pre-nup work than I ever took as either wanting to do something impermissible under state law or as a waste of money that was just replicating what state law already said.
Unequal assets, closely-held family business, children from prior marriages, a lot of family money, okay, there are things we can do. But most average people? Waste of money. I'm not sure who is always recommending EVERYONE get one, but it's either people who don't understand the purpose of prenups or people who somehow make money off of them.
I can't tell you if YOU need one, but to categorically state EVERYONE needs one is bad advice.
posted by Eyebrows McGee at 2:57 PM on April 8, 2013 [4 favorites]
I'm an attorney (not yours!) who practiced in estate planning for several years, in a U.S. jurisdiction, and this is an absolutely ridiculous claim. I turned away far more pre-nup work than I ever took as either wanting to do something impermissible under state law or as a waste of money that was just replicating what state law already said.
Unequal assets, closely-held family business, children from prior marriages, a lot of family money, okay, there are things we can do. But most average people? Waste of money. I'm not sure who is always recommending EVERYONE get one, but it's either people who don't understand the purpose of prenups or people who somehow make money off of them.
I can't tell you if YOU need one, but to categorically state EVERYONE needs one is bad advice.
posted by Eyebrows McGee at 2:57 PM on April 8, 2013 [4 favorites]
I'm in the prenups for everybody camp as I think that done well, it can be a very healthy and useful process - and contributes to creating a positive social norm that can help people who wouldn't think they needed it.
I'd also add that legal attitudes to prenups in Canada have been all over the map in the last thirty years and the lawyer you consulted can only guess what they will be 30+ years from now. (Let alone what they will be wherever you end up living).
That said, an average couple without other children or complicated assets doesn't really need a prenup. I think you two can split the difference by looking for a mediator or a lawyer who is specifically interested in prenuptial counseling to work with you on the process of a) creating a document that has a good shot at being enforceable over a lot of jurisdictions and not less importantly b) learning and thinking together about the legal and financial consequences of your marriage.
If you look for "collaborative" lawyers you may even find someone who works with a social worker/counselor.
posted by Salamandrous at 5:48 PM on April 8, 2013
I'd also add that legal attitudes to prenups in Canada have been all over the map in the last thirty years and the lawyer you consulted can only guess what they will be 30+ years from now. (Let alone what they will be wherever you end up living).
That said, an average couple without other children or complicated assets doesn't really need a prenup. I think you two can split the difference by looking for a mediator or a lawyer who is specifically interested in prenuptial counseling to work with you on the process of a) creating a document that has a good shot at being enforceable over a lot of jurisdictions and not less importantly b) learning and thinking together about the legal and financial consequences of your marriage.
If you look for "collaborative" lawyers you may even find someone who works with a social worker/counselor.
posted by Salamandrous at 5:48 PM on April 8, 2013
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Who knows where you will live in the future--it may be worthwhile to have a pre nup as a record of your intent.
This is not legal advice, and I am not your lawyer, or even a Canadian.
Congrats!
posted by Admiral Haddock at 1:08 PM on April 8, 2013