A prenuptial agreement, or prenup (referred to as a marriage contract in family law), is an agreement between two people who are married or who intend to marry. It sets out how certain issues will be handled in the event of separation or death. It is governed by the Family Law Act (or equivalent legislation in provinces other than Ontario) and can be signed before or during the marriage.

In the event that one of the spouses did not, or no longer lives in the province in which the contract was signed and a breakdown of the marriage has occurred, a prenup may still be valid and enforceable provided it is:

• in writing
• signed by both parties
• witnessed
• entered into voluntarily (no duress)
• based on full financial disclosure (ideally documented)
• Aligns with the local laws of the jurisdiction where enforcement is being sought

What happens if you divorce in another province or country?

If you separate in a different province or country than where the prenup was originally created and signed, the laws of the new jurisdiction may apply. That jurisdiction will review your prenup and determine whether to enforce some, all, or none of the clauses based on the laws of the new jurisdiction.

It may be advisable to include a choice of law provision (a clause in the contract stating what laws are to apply) to reduce the likelihood of confusion or dispute later on. Similarly, a jurisdiction clause (agreeing where disputes should be resolved) may also make sense in certain circumstances.

Canada

As a general rule, most provinces respect and enforce the prenups made in other provinces, provided they are legally valid and don’t conflict with any local laws.

Because Québec requires that prenups meet civil law standards, prenups made in other provinces may have some clauses that could be determined to be unenforceable, specifically with regard to spousal support or matrimonial home rights.

USA

Many states in the USA recognize foreign prenups and may enforce them after applying local family laws to test fairness.

If you or your spouse resides in the USA, or is likely to reside in the USA, it is advisable to ensure the prenup is constructed in such a way so that it is enforceable in your Canadian province as well as in the USA.

In the USA, the Uniform Premarital Agreement Act (UPAA) and the Uniform Premarital and Marital Agreements Act (UPMAA) aim to promote consistency in how prenups are handled across different states. These laws serve as key references for enforceability and interpretation.

Getting the advice and help you need

Before you say “I do,” protect your future. Contact Prenup.ca for clear, enforceable marriage contracts that safeguard your assets and reduce conflict if things change. Speak with an experienced Ontario family lawyer today at 1-800-837-0460 .

								
You now have 3 options:
								

									
More answers about Family Law
									
Master List: 2,500 Legal Answers
																													
																		
Government Links