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12

Prenuptial Agreements | Marriage Contracts: Enforceability Issues…

Toronto business lawyerPrenuptial Agreements | Marriage Contracts

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to getting a marriage contract or prenuptial agreement in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton and other Ontario family law lawyers registered on Dynamic Legal Forms who can offer information, advice, and assistance with respect to your marriage contracts and prenuptial agreements.

Prenuptial Agreements | Marriage Contracts: Enforceability Issues…

So in this blog, I thought I’d talk about some of the issues concerning whether your marriage contract or prenuptial agreement is valid and enforceable. Now, we start off with the basic idea that you have one of these agreements. Now, your marriage is breaking down and you want to rely upon the terms and conditions of that agreement. But the other side wants to challenge the validity and enforceability of that agreement (in whole or in part) in court! What should you know? Keep reading…

Provisions dealing with Children…

So a prenuptial agreement, marriage contract, and even a cohabitation agreement can deal with things related to children. They can specifically deal with matters respecting the education, moral training of children or even child support. But these provisions can be disregarded by a court pursuant to the Ontario Family Law Act: sections 56(1) and (1.1) say that a court may disregard any provision of a domestic contract (i.e. a cohabitation, prenuptial or marriage contract) dealing with children. For example, section 56(1) says that matters respecting the education and moral training of a child can be disregarded if the court believes that doing so “is in the best interests of the child”. Meanwhile, section 56(1.1) says that the court may disregard any provision of a domestic contract pertaining to child support where that provision “is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract”.

Provisions dealing with Possession of the Matrimonial Home

Now, the Prenuptial Agreement or Marriage Contract says something like, “upon the termination of the marriage, Party X has to move out and leave Party Y in sole and exclusive possession of the matrimonial home”. So what are the important issues to consider? Well, first of all, section 19 of the Ontario Family Law Act says that “both spouses have an equal right to possession of a matrimonial home”. So can this provision of the Family Law Act be overridden by a Prenuptial Agreement or Marriage Contract? Nope. Check out Section 52(2), which says that the provisions in the prenuptial agreement or marriage contract that try to limit a spouse’s right to possess the matrimonial home are UNENFORCEABLE.

Limits of Possession
So does that mean that both spouses are equally entitled to possess the matrimonial home forever? Nope. There are limits. The Family Law Act says that if only one spouse has an interest in the home (i.e. OWNS the home), then the other spouse’s right to possession ENDS when they cease to be spouses unless a separation agreement or court order provides otherwise: section 19(2)(b). Furthermore, even though both spouses have an equal right to possess the home, and REGARDLESS of who owns the home and its contents, a party may make an application to the court to order that ONE SPOUSE be GIVEN EXCLUSIVE POSSESSION OF THE MATRIMONIAL HOME! This is in section 24(1) of the Family Law Act.

Factors to Consider
The Court will consider a number of factors to determine whether exclusive possession should be granted. Such factors include: the financial position of both spouses, any written agreement between the parties, the availability of other suitable and affordable accommodation, and any violence committed by a spouse against the other spouse.

In the next blog, I’ll discuss how support provisions contained in Prenuptial Agreements and Marriage Contracts can be challenged…

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