Benefits of a Prenuptial Agreement


Summer 2024

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A prenup is an official document drafted for the benefit of an intended married couple who wants to have and maintain certain privileges in the event of their marriage getting dissolved. This is largely due to divorces known to lead to financial ruin for many unprepared spouses.  

The Best Time to Do a Prenup

The very early stages of your relationship—when you both start getting serious about the relationship—should be the most appropriate time to start the discussion about a prenup. Also, it goes without saying that this should be done when you’re most happy and thinking clearly about the future. Besides addressing debts and the financial issues associated with a divorce, a prenup will also help to iron out and settle any potential alimony issues.

Some of the financial advantages of a prenup is that it spells out how debt obligations will be handled and serviced. Also, prenups will ensure that, as a business owner, your business is protected in the event of a divorce. A prenup will help you immensely if you’re remarrying as it will include recourses allocated to you for such purposes. As for its disadvantages, the obvious and perhaps the most common is the effect it will have on the couple’s romantic life. A couple might begin to question their trust and love for one another. They might even begin to doubt if they truly love one another and if the vows they’ll be making hold any meaning. 

According to some of the reasons to do a prenup include the following:

  1. Ensure the marriage is about the relationship and not the issues.
  2. Allows both spouses to leave a marriage that isn’t working out for them.
  3. Get a better understanding of your spouse’s needs, goals, and concerns, before marriage.
  4. A prenup protects both spouses from an unfair settlement.
  5. Protects spouses who are blindsided by divorce.
  6. A prenup helps build a firm foundation for marriage.
  7. A prenup helps married partners to avoid drawn-out legal battle.
  8. A prenup helps you if you want to give up something for your spouse; also if you want to protect specific assets.

Who Benefits from a Prenup?

A prenup agreement is bound to benefit anyone; however, there are specific categories of people whom a prenup will be beneficial to and these include the following:  

  • If you think and believe that unmarried couples are not fairly treated by family law, then getting a prenup will reassure you.
  • People who own their own homes before going into marriage might want to sign a prenup to protect what’s theirs in the case of a divorce.
  • If you are remarrying or this is your second marriage, getting a prenup will be highly beneficial to you. 
  • Anyone who is expecting a huge inheritance, or who is expected to take over a really substantial family entity, is advised to get a prenup. 
  • If you have children from a previous relationship, getting a prenup will be of benefit to you, as it will help spell out who gets what in the event of severance of the marriage. 

Contents to Include in a Prenup

There are contents that are deemed fit as well as unfit to be in a prenup. Essentially, a prenup can contain the following (this is not an exhaustive list):

  • How a property can be divided in the event of divorce and even death. 
  • Property ownership with distinctions made on joints and separate ownership.
  • How property inheritance will be settled. 
  • Obligations and support of spouse. 
  • Details about beneficiaries of life insurance policies, pension plans, as well as details about pets if applicable.

Contents Prohibited to Be in a Prenup

  • Any information or details that relate to child support, custody and access to children are not permitted to be included in a prenup agreement. 
  • Immoral and illegal clauses especially as it relates with fidelity and infidelity cannot be included in a prenup, as it is not legally binding and cannot be enforced by any court of law. 
  • Likewise, any details that references a couple’s sexual life is prohibited in a prenup. 

Validity of Prenups

It’s worth noting that not too long ago prenups were considered illegal, but that stance has since changed with many Canadian provinces adopting provisions for it. The statutory authority permitting prenups in Ontario is the section 53 of the Family Law Act. However, caution is advised when preparing a prenup, as certain procedural and substantive irregularities might invalidate it. These include:

  • Not ensuring that the agreement is in writing and duly signed by the intending couple with traceable witnesses for each of them. Oral prenups are void and cannot be enforced by the court. 
  • Non-disclosure of details of everything relating to finances including income, financial assets, and their value. 
  • Pressuring your partner to enter into a prenup agreement can also invalidate it. Ensure that the decision is made independently by both parties only and not by coercion of family members or business associates.
  • A prenup can also be rendered invalid if one partner is left destitute by a very wealthy spouse after a particularly long relationship. This situation is perceived as grossly unfair and requires the court to address the perceived injustice by voiding the prenup.

Chinenye Emezie | Assistant Editor

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