By: Lorne Fine
I am getting married in the near future. Do I need a Marriage Contract or Prenuptial Agreement?
Prenuptial Agreements or Marriage Contracts are not just for the rich.
Marriage is a partnership. Anyone entering into a partnership should understand the terms of that relationship and protect their rights with due diligence. That means most people, especially those individuals bringing assets into the marriage, should take the time to draft a Prenuptial Agreement or Marriage Contract.
There are many people who bring their residence into a relationship when they get marriage. They have worked long and hard to earn enough money to purchase their residence. Some people are not aware that the Ontario Family Law Act treats the Matrimonial Home differently than other assets.
Under the Ontario Family Law Act, upon the breakdown of a marriage, the parties divide the increase in their net worth from the date of marriage to the date of separation. Therefore, in determining each party’s Net Family Property each party is entitled to deduct the value of most of their assets as of the date of marriage. For example, if you have $100 in your bank account on the date of marriage and $900 on the date of separation, you must share $800, the increase in value of the asset, with your spouse. However, this is not the case with a Matrimonial Home.
Pursuant to the Ontario Family Law Act, if you do not have a marriage contract, and you resided in the same house on the date of marriage as on the date of separation, you are not entitled to deduct the value of the Matrimonial Home on the date of marriage. It is an anomaly in the Ontario Family Law Act. Therefore, let’s assume that you owned a house on the date of marriage and the value of your house on the date of marriage was $400,000. You and your new spouse move into your house. You then continue to reside in your house until the date of separation. On the date of separation, the value of your house was $600,000. Therefore, your house has increased in value by $200,000. If your money was in a bank account the value of $200,000 would be part of your Net Family Property. However, since it was a Matrimonial Home, you would share $600,000 with your former spouse and NOT $200,000. It is clear that this is not fair. However, it is the law.
The situation would be different if on the date of marriage you moved into the house that you brought into the marriage with your spouse and then moved during the marriage into another house. If you resided in the second house on the date of separation, you WOULD be entitled to deduct the value of the house that you owned on the date of marriage.
If you wish to ensure that you can deduct the value of the house that you brought into the marriage from your Net Family Property on the breakdown of your marriage, it is critical that you and your new spouse enter into a Prenuptial Agreement or Marriage Contract.
An experienced Family Law Lawyer can help you draft a Prenuptial Agreement that protects your legal rights and financial assets as well as help you and your spouse-to-be in order to avoid or resolve financial disputes before saying “I Do.”Prenuptial Agreements provide legal and financial protection in the event that a marriage is terminated and the parties separate. The Agreement sets out how the parties wish to resolve their differences if there is a breakdown in the marriage. The Agreement can protect assets that you bring into the marriage and do not intend to share in the increase in value of same with your spouse.
In order to have a valid Marriage Contract, it is advisable for both parties to have independent legal advice and for the parties to disclose all of their respective financial assets and liabilities and express concerns about their finances and how they wish to deal with their finances in the future.
While there may be “do-it-yourself” Prenuptial Agreement forms available online, drafting a Prenuptial Agreement that truly meets the needs of you and your partner should be done by an experienced Family Law Lawyer.
It is never wise to be “penny wise” and “pound foolish”. We have had too many court cases that could have been avoided had the parties drafted a proper Marriage Contract with the assistance of experienced counsel.
Lorne Fine, B.A., LL.B. Fine & Associates Professional Corporation Family & Divorce Lawyers
The Lawyers of Fine & Associates Professional Corporation practice only Divorce and Family Law in Ontario. They are knowledgeable about all aspects of Divorce law, including, but not limited to, child support, child custody, and property division. They pride themselves on their knowledge of the various courts in Ontario and, have litigated many different cases. In every case, their focus is on their clients and they are dedicated to aggressively protecting their rights so that all matters are resolved quickly and fairly.
The information herein is provided for information purposes only and is not intended as legal advice and should not be relied upon as legal advice. If If you have any questions, regarding family or divorce law please see www.Torontodivorcelaw.com. You can also contact Lorne Fine at 416-661-2066 or [email protected] com.