Prepared by Steve Benmor,
B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, Acc.D.C.
WHY THIS PRENUP CHECKLIST MATTERS
Whether you’re about to get married for the first time, enter a second marriage, buy a home together, receive an inheritance, start a business, receive family assistance, or blend your families, you are entering an important milestone that can significantly affect your financial future, wealth and obligations. A relationship is not only an emotional commitment, it is also a legal and financial partnership. Responsible planning allows couples to protect what they have built, create clarity, and avoid unnecessary conflict in the future. Legal, accounting and expert services for an average separation or divorce in Canada cost over $75,000 on average. Without proper planning, spouses may face substantial legal fees, valuation costs, disclosure obligations, and uncertainty regarding property division and support obligations.
Prenups are no longer only for the wealthy. Cohabitation and marriage are major legal and financial events. While no one enters a relationship expecting it to end, having open, honest and informed conversations can protect both partners and prevent costly disputes later. Just as all people purchase car insurance without expecting a collision, or prepare a Will without expecting death, a Prenup is responsible planning.
In Ontario, cohabitation, marriage or childbirth automatically create legal rights and obligations relating to property, support and family responsibilities under the Family Law Act. In simple terms, any person in Ontario who cohabits or marries falls under the legal protections of Parts 1, 2 and 3 of the Family Law Act https://www.ontario.ca/laws/statute/90f03 and bears significant financial responsibilities when the relationship ends.
Part 4 of the Family Law Act governs Prenups and is the primary form of financial protection.Section 53 of the Act states:
“Two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and
(d) any other matter in the settlement of their affairs.”
A Marriage Contract or Cohabitation Agreement (Prenup) allows couples to proactively decide how financial matters will be handled.
WHO SHOULD CONSIDER A PRENUP?
A Prenup may be especially important if you:
- own real estate
- own or operate a business
- have investments, savings or significant assets
- expect future wealth
- expect to receive gifts or inheritances
- have family financial support
- are purchasing property with funding from parents or family
- have children from a previous relationship
- are entering a second marriage
- have unequal incomes
- have trusts or family wealth
- own shares, equity or future business interests
You do not need to be wealthy today to require the protection of a Prenup. Many people accumulate their greatest wealth during their relationship through career growth, business growth, investments, and family transfers. It is too late to sign a Prenup if you wait until these events occur.
BENMOR’S PRENUP CHECKLIST will help you start the important conversations that every couple should have before living together.
1. Do you own any assets on your own?
Why it matters: You may not need a Prenup if you do not own any assets of value and will not likely receive gifts, acquire assets or grow investments during your relationship. Assets can include real estate, vehicles, investments, RRSPs, TFSAs, business interests, jewelry, art collections and intellectual property.
Any increase in your net worth during your relationship may create financial considerations if you separate. A Prenup allows couples to decide in advance how existing assets and future growth will be treated, rather than leaving these decisions to be determined after separation.
2. Do you expect your wealth or income to increase during your relationship?
Why it matters: Many people begin relationships early in their careers and accumulate significant wealth later through promotions, business growth, investments, equity compensation, professional practices or entrepreneurship. A Prenup can address how future growth, income changes, and new assets may be treated.
3. Do you each earn the very same income?
Why it matters: If you both earn the same income and this will continue throughout your relationship, you may not need a Prenup to protect your income from spousal support. Spousal support may arise where there is a significant income difference and one spouse has become financially dependent on the other.
In a Prenup, you can agree on how spousal support will be treated if the relationship ends.
4. Will you be receiving money, gifts, inheritances, or financial assistance from family during your relationship?
Why it matters: Family gifts and financial assistance are among the most common sources of disputes after separation. Examples include:
- parents providing a down-payment for a home
- family money used to purchase property
- future inheritances
- family business transfers
- financial support provided to children
A Prenup can clarify how these contributions will be treated and help ensure family intentions are properly documented.
5. Will you two own a home together?
Why it matters: If you will not own a home together, you may not need a Prenup. Under Ontario law, property rights may apply differently depending on ownership, timing and circumstances. Real estate is one of the most common areas where separating couples suffer drastic financial consequences and lawyer fees. In a Prenup, you can agree to how the property will be treated, how contributions will be recognized, and how ownership issues will be handled.
Occupation of the matrimonial home cannot be waived.
6. Do you own a business?
Why it matters: A business may create significant financial exposure if the relationship ends. Under Ontario law, business interests may be considered property. This may require financial disclosure, valuation, and potentially expensive expert involvement. A Prenup can help business owners establish a clear framework regarding business ownership, growth, valuation, and future claims.
7. Do you have a family business, trust, or estate plan?
Why it matters: Wealth planning works best when family law planning is considered at the same time. Estate plans, trusts and family wealth transfers may have unintended consequences if relationship breakdown is not considered. A Prenup can help align relationship planning with broader wealth preservation goals.
8. Do either of you have children from a previous relationship?
Why it matters: Under Ontario law, a step-parent could be liable for child support. You can address financial responsibilities in a Prenup, although child support obligations cannot be waived.
9. Are you already married or living together without a Prenup?
Why it matters: It is still possible to create financial clarity after a relationship has already started. A Postnuptial Agreement (aka Postnup) is a domestic contract created after marriage or after a couple has already been living together. A Postnup can address many of the same issues as a Prenup, including property division, support obligations and financial expectations going forward. While earlier planning is usually preferable, it is never too late to discuss whether a Postnup may be appropriate, especially if a major financial event is about to occur such as parents providing a down-payment for a home, inheritances or a new family business.
10. Are all Prenups the very same?
Why it matters: Not all Prenups provide the same level of protection. If you click https://bit.ly/4a0yVH0, you will find hundreds of court cases where one spouse asked a judge to disregard or set aside a Prenup. Many of these disputes arose because the Prenup was poorly drafted, incomplete, or vulnerable to challenge. The result was costly litigation that could have been avoided. Courts may disregard domestic contracts where issues arise such as unfairness, lack of financial disclosure, pressure or coercion, improper drafting and a lack of independent legal advice. A properly prepared Prenup should be customized to the couple’s circumstances, financial situation, long-term goals and drafted with the goal of minimizing future disputes and protecting financial interests.
For the last 30+ years, Benmor Family Law Group has prepared hundreds of Marriage Contracts, Cohabitation Agreements and Separation Agreements. Because they are family law experts, they understand how to draft Prenups that protect clients when they get married, buy a home, receive family wealth, enter a second marriage, start a business, or blend families. A properly prepared Prenup is not simply a document, it is a personalized legal strategy designed to protect your assets, income, and future financial circumstances.
How it works:
- You complete the online payment of $2,500 + HST at https://benmor.com/prenups-cohab-agreements/
- Within 5 business days, Mr. Benmor will request your basic information and a list of your assets, income, and financial circumstances for consideration.
- After this information is received, Mr. Benmor will contact you within 5 business days to discuss the purpose of the Prenup and how best to structure it to protect your interests.
- Within 5 business days, Mr. Benmor will email you a draft Prenup for your review, together with a Zoom appointment to answer questions, review the agreement, and make any necessary revisions. The final Prenup will then be delivered for approval and signature through DocuSign.
- Once you, your partner, and your partner’s lawyer have signed the Prenup through DocuSign, you will receive the final signed agreement together with a closing report and instructions for safekeeping.
*If you require additional assistance, you may schedule a private one-on-one Zoom consultation with Mr. Benmor at a cost of $750 per hour plus HST.
What’s included after payment is processed:
- A one-on-one consultation with Mr. Benmor to discuss the purpose of the Prenup and how to protect your assets, income, and financial circumstances.
- Review of your provided financial information and circumstances.
- Preparation of your customized Prenup based on your specific needs.
- A second one-on-one consultation with Mr. Benmor to answer questions and finalize the agreement.
- Coordination of the signing process between you, your partner, and your partner’s lawyer through DocuSign.
- Mr. Benmor’s completion of the Certificate of Independent Legal Advice.
- Delivery of the completed and signed Prenup, together with a final report for your records.