In Ontario, if people marry without a prenup (which is referred to as a marriage contract under the Family Law Act), default family laws apply; most significantly those regulate:

1. Property Division

When a marriage ends, by way of separation or if one of the spouses dies, assets are not, by default, split evenly. Instead, each party calculates their net family property (the increase in their net worth during the marriage), and the party with the higher net family property pays half of the difference to the other party. This payment is also called an equalization payment.

Common Exclusions (which still apply even without a pre-nup):

• Property owned before the marriage is generally excluded from this calculation, but any increase in value is potentially shareable
• Gifts or inheritances received during the course of the marriage are excluded unless they were used towards the matrimonial home.
• Personal injury settlements
• Proceeds from life insurance

The matrimonial home (the home where the spouses lived together) is not excluded from the calculation – the entire value is shared (even if owned before the marriage).

2. Debts

All debts which were incurred during the marriage are factored into (subtracted from) each spouse’s net family property calculation.

3. Spousal Support

Spousal support may be owed to one of the spouses depending on the circumstances of the marriage and its breakdown. Many judges and mediators take guidance from the Spousal Support Advisory Guidelines (SSAG). The main considerations when determining if spousal support is payable are:

• The length of the marriage
• The income of each spouse
• The role of each spouse during marriage (e.g. income earner, homemaker, etc.)
• Whether one of the parties is in financial need and whether the other party is in a position to pay
• Whether one of the parties sacrificed earning potential (or potentially an entire career)

4. Children

Custody, access, decision-making responsibility and child support payments are determined based on the best interests of the child – not the existence or lack thereof of a marriage contract.

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 .

								
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