Your fiancé wants a prenuptial agreement before you marry. Do you have to sign?
The short answer is no. Canadian law is based on informed consent – meaning you understand and agree with what you are signing. You can’t be forced to sign anything in Canada.
Being pressured is another matter. If you are from a culture where women’s rights are restricted, you may feel you have no choice.
Here are five things to know about spousal or ‘prenup’ agreements..
1. Prenups are legal
A prenup is a legal contract. Like any contract, it must be signed by both of you. And your signature must be witnessed. Otherwise, it could be invalid.
2. You must disclose your finances
Your prenup must fully disclose your and your partner or fiancé’s finances.This is so you can make informed decisions.
Your finances include your income and any other such assets. By detailed, we mean:
- the asset type
- its value
- who it is with (name of bank or brokerage)
- any terms and conditions.
Yes, it’s obligatory. The court can overturn a prenup if you can show full and honest disclosure did not occur.
Nancy Rick had a mediated settlement overturned in 2009 when her partner of 29 years took advantage of her vulnerability after they separated. In the Supreme Court of Canada’s words, couples can make any bargain they choose. But they must arrive at “the negotiating table” with all the information needed to make that decision. In Rick’s case, the couple had planned to split their assets 50/50. But her husband “deliberately concealed or under‑valued” their assets.
Of course, you must show the court you made an effort to get disclosure. You could lose your case if your partner or fiancé can prove you were satisfied with the information provided
and no effort was made to hide assets or mislead you.
Protect yourself by ensuring you have all the details before you sign. Include this as an attachment to your prenup and keep your paperwork in a safe place.
3. You can’t be coerced
As we said before, Canadian law is based on free will. Your fiancé or partner, or their family or yours, can’t force you to agree to anything against your will.
That may be easier said than done. But if you feel you were coerced to sign a prenup you disagreed with, you can:
- talk to an Axess Law lawyer
- ask a mediator to help you
- take it to a social or immigant services agency
- or go to court.
The good news is a contract signed under duress can’t be legally enforced. To make your case, keep notes about anything that was said or done when you signed. You can ask the court for a protection order if you feel threatened.
4. A prenup can be illegal
Your prenup can’t restrict your legal rights. You can’t be penalized because of adultery or not obeying your fiancé or partner. It can’t require you to give up your child or not request child support if you divorce or separate. In other words, anything that isn’t legal is invalid. Courts will overturn those parts, while preserving your prenup.
5. It must be fair
Say you married a long time ago. You fell ill and couldn’t work. Your partner or spouse was very successful, making much more money than you. If you divorce or separate, a court can protect your interests by voiding an unfair prenup that leaves you in dire straits. Remember, you can always change a prenup or let it expire after a certain time (called a sunset clause).
Prenup requirements can vary by province – especially in Quebec, which has its own legal system. Ask us if you are uncertain. Our family law lawyers can keep your prenup strictly legal.