Orangeville: (519) 940 - 8309
Fergus: (519) 772-6139
Fax: (519) 940 - 0526

Marriage Contract Lawyer in Fergus

A marriage contract, often called a prenup, lets two people decide in advance what happens to their property and support if the marriage ends. It can be signed before the wedding or at any time during the marriage. For couples in Fergus, Elora, and across Wellington County, a well-drafted contract can keep a family farm, quota, a business, or an inheritance out of an equalization claim.

The protection is only as strong as the process behind it. A court can set aside a contract signed while one spouse hid significant assets or debts, or where a spouse did not understand what they were signing. The property it was meant to protect is then divided under the Family Law Act as if there were no contract. Call Foote Law in Fergus at 519-772-6139.

⚖   Request a Consultation

How Foote Law Can Help With
Marriage Contracts in Fergus

Foote Law acts for either spouse on a marriage contract, including:

  • Drafting a marriage contract before or after the wedding.
  • Reviewing a contract prepared by the other spouse's lawyer and giving independent legal advice before it is signed.
  • Preparing the financial disclosure each spouse exchanges before signing.
  • Excluding a family farm, quota, family corporation, business, or inheritance from net family property.
  • Amending an existing marriage contract or cohabitation agreement.

Every file is staffed by a lawyer and a law clerk. The clerk prepares disclosure and documents at a lower hourly rate, which keeps costs down. Meetings are available in person at the Fergus office, by phone, or by video. Foote Law accepts Employee Assistance Program referrals. Call Foote Law in Fergus at 519-772-6139. Foote Law serves clients in Fergus, Elora, Guelph, and throughout Wellington County, in person and virtually.

What It Can Decide

Under section 52(1) of the Family Law Act, two people who are married, or who intend to marry, can agree on their rights and obligations during the marriage and on separation, divorce, or death. The contract can address the ownership and division of property, support, the right to direct the children's education and moral training, and any other matter in settling their affairs. Under section 2(10), where the contract and the Act deal with the same matter, the contract prevails unless the Act says otherwise.

What a Marriage Contract
Can and Cannot Cover

What It Can Decide

Under section 52(1) of the Family Law Act, two people who are married, or who intend to marry, can agree on their rights and obligations during the marriage and on separation, divorce, or death. The contract can address the ownership and division of property, support, the right to direct the children's education and moral training, and any other matter in settling their affairs. Under section 2(10), where the contract and the Act deal with the same matter, the contract prevails unless the Act says otherwise.

What It Cannot Decide

Some matters stay outside the couple's control. A marriage contract cannot settle decision-making responsibility or parenting time for children; those questions are decided at separation based on the children's best interests. Under section 52(2), any term that limits a spouse's rights under Part II of the Act is unenforceable. Part II gives both spouses an equal right to possession of the matrimonial home and prevents either spouse from selling or mortgaging it without the other's consent. A contract can still decide how the home's value is shared, as explained below.

Under section 56, a court can also disregard a term about the education or moral training of a child where that is in the child's best interests, and a child support term that is unreasonable having regard to the Child Support Guidelines.

Protecting a Farm, Business, or
Inheritance in Wellington County

When a marriage ends, each spouse calculates their net family property: broadly, the growth in their net worth between the wedding and separation. The spouse with the higher figure pays the other half the difference. This payment is called equalization, and a marriage contract changes what goes into the calculation.

01

Property Owned Before the Marriage

Under section 4(1) of the Family Law Act, a spouse deducts the value of property owned on the date of marriage, so only the growth in its value during the marriage is shared. The matrimonial home is the exception. A house owned before the wedding that is still the matrimonial home at separation gets no deduction and counts at its full value. A marriage contract can exclude both the growth on premarital property and the value of the home.

02

Gifts and Inheritances

Under section 4(2), property received by gift or inheritance from a third person during the marriage is excluded from net family property. Income from that property is excluded only where the donor or testator expressly said so. Courts have also held that the exclusion is lost when the gift or inheritance is put into the matrimonial home, for example by using inherited money to pay down the mortgage. A marriage contract can keep inherited property and its income out of the calculation even then.

03

Farm Land, Quota, and Family Corporations

Farm land, dairy or poultry quota, and shares in a family farm corporation are all property for equalization purposes. Those acquired during the marriage count at full value, and those owned at the wedding count for their growth, unless they were received as a gift or inheritance or are excluded by contract.

Where the farmhouse is the matrimonial home, section 18(3) limits the home to the part of the property that is reasonably necessary to the use and enjoyment of the residence. The working land therefore keeps its date-of-marriage deduction, even though the house does not.

Making a Marriage Contract
That Holds Up

Formal Requirements

  • Section 55(1) of the Family Law Act makes a domestic contract unenforceable unless it is in writing, signed by both spouses, and witnessed. The same requirements apply whether the contract is signed before the wedding or during the marriage.

When a Court Can Set It Aside

  • Under section 56(4), a court can set aside a marriage contract, or any term in it, where a spouse failed to disclose significant assets, or significant debts or other liabilities, that existed when the contract was made.
  • A spouse did not understand the nature or consequences of the contract.
  • The law of contract otherwise allows it, such as where a spouse signed under duress.

Disclosure and Independent Legal Advice

  • Full disclosure and separate lawyers are the two best protections against a later challenge.
  • Before signing, each spouse should disclose their assets, debts, and income, with a valuation of any farm, quota, or business the contract will exclude.
  • Each spouse should also have their own lawyer explain the contract before it is signed. That advice is strong evidence against a later claim that the contract was not understood, and signing well before the wedding helps answer a claim of pressure.

Spousal Support Terms

  • A marriage contract can limit or waive spousal support, but that protection is not absolute. Under section 33(4), a court can set the term aside and order support where it results in unconscionable circumstances, where the spouse qualifies for support out of public money, or where there is a default in payment.
  • On a divorce, section 15.2(4)(c) of the Divorce Act requires the court to consider the contract, but the court is not bound by it.

Marriage Contracts and Estate Planning
& Changing an Existing Agreement

Marriage Contracts and Estate Planning

Without a marriage contract, a surviving spouse has six months under section 6 of the Family Law Act to choose between what the will leaves them and an equalization of net family property. That choice can unsettle a succession plan for a farm or business. A marriage contract can waive the election, so the property passes as the will directs.

Since January 1, 2022, marriage no longer revokes a will in Ontario under the Succession Law Reform Act. A will made before the wedding stays in effect, so each spouse's will should be reviewed when the contract is signed to make sure the two documents work together.

Changing an Existing Agreement

A marriage contract can be amended or replaced at any time, as long as the change is in writing, signed, and witnessed as section 55(1) requires. Couples often revisit a contract after buying land, starting a business, or receiving an inheritance.

If a couple with a cohabitation agreement marry, section 53(2) treats that agreement as their marriage contract. Terms written for an unmarried couple may not deal with the matrimonial home or equalization, which apply only once the couple marry, so the agreement should be reviewed before the wedding.

Planning a Marriage
Contract in Fergus?

A marriage contract is easiest to get right when there is time for full disclosure and independent advice well before the wedding. The first consultation covers what each spouse wants to protect and how disclosure and independent advice will be handled. It is billed at the lawyer's hourly rate for the time spent. It helps to bring:

  • A list of assets and debts, including any farm land, quota, business, or corporate shares.
  • Any valuations, appraisals, or recent financial statements.
  • Details of any expected gift or inheritance.
  • Any existing cohabitation agreement or marriage contract.
  • The wedding date, if one is set.

Foote Law's Fergus office is at 105 Queen Street West, Unit 14b, Office 103, Fergus, and is open Monday to Friday, 8:30 a.m. to 4:30 p.m. Call Foote Law in Fergus at 519-772-6139.

519-772-6139 Request a Consultation →
The owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.