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Prenuptial Agreement
A Prenuptial Agreement is a contract used by two people who are about to marry and wish to sort out current and future financial and property matters ...
Last Updated May 10, 2023
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Marriage is more than just a celebration of love — it’s a legal commitment to another person. In this guide, we'll discuss what you should know before getting married or remarried, how to get married in Canada, and how marriage impacts you legally and financially.
Marriage is the union of two people. It’s considered a legal and personal commitment. For a marriage to be legal in Canada, it must meet the following requirements:
Common-law relationships consist of two people in a conjugal relationship that may qualify as legal partners for tax, family, and property division purposes.
People in a conjugal relationship live and act as a married couple, but aren't formally registered as married and haven’t performed a civil or religious ceremony. They must also meet the same legal requirements as a married couple.
A common-law relationship is also known as:
Some federal and provincial laws grant common-law couples rights similar to married couples, such as access to inheritance if one spouse dies without a Last Will, the ability to file joint tax returns, and access to program benefits.
Many provinces address common-law relationships in their legislated definitions of “spouse.” To qualify as a common-law partnership, each act explains how long the couple must be together and considers several factors of the relationship. Rights for unmarried couples are set out in the following legislation:
It’s important to note that in Manitoba or Nova Scotia you can register your domestic partnership with Vital Statistics to opt into some of the rights typically granted to married couples.
In some jurisdictions, unmarried couples must make their claim for spousal benefits by providing documentation that proves the length and extent of their relationship. For instance, spouses can make a court application for rights to property and assets lost in a separation or when their partner dies intestate (i.e., dies without a Last Will and Testament or estate plan).
There’s a common belief that a couple is automatically in a common-law marriage if they live together for a length of time. However, the time requirements can range from one to three years depending on your jurisdiction and whether or not you have children together. You may also have to prove that you operate as an economic and domestic unit (i.e., you share finances and household responsibilities).
There are a number of documents you can use to prove your relationship. For example, you can use a Statutory Declaration to declare when your common-law union began and ended (if applicable); support your claim by attaching evidence such as shared utility bills or government identification cards with a shared address.
Alternately, you can use a Cohabitation Agreement to detail many aspects of your common-law relationship, including:
In addition to being a useful tool for proving domestic partnerships, a Cohabitation Agreement is crucial for protecting both parties in the event of a separation. This legally-enforceable document details the property, assets, and debts that spouses share or keep separate. As such, you can use this agreement to avoid potential disputes after a split.
Getting married is a big commitment, so it’s important to do your due diligence beforehand. You and your spouse should discuss topics such as:
In Canada, parents always have an obligation to provide child support regardless of whether they are married or not. Make sure you’re on the same page as your partner about having kids and how you would handle them if you ever separated.
If you have children from a previous relationship and are planning to get married, it’s important to discuss how your new spouse will fit into your family dynamic. For instance, a stepparent may wish to play a larger role in their stepchild’s life by adopting them.
While adoption laws vary by province and territory, you’ll typically go through a streamlined process when adopting a member of your own family (as is the case in Ontario). Of course, each situation is unique and courts must consider who will honour the best interests of the child (especially when both biological parents are in the picture). In some cases, this may mean overriding a biological parent’s objection to adoption in favour of the stepparent.
Additionally, if you already have children, you should consider creating or updating your Last Will and Testament. Having this document ensures that all of your loved ones are looked after in case you unexpectedly pass away.
Naturally, even the best relationships experience problems from time to time. But, if you can handle the issues appropriately, conflict can be a healthy way to strengthen communication and trust between partners. Proactively plan for conflict by discussing techniques for managing fights with your spouse.
It’s also important to consider how to avoid further disagreements if you decide to end the relationship and legally separate. Consider creating a Prenuptial or Cohabitation Agreement to reduce the chances of spouses arguing over who gets what in a separation. These documents are especially important if you’re entering a relationship with significant assets, as you may wish to clarify what becomes shared and what remains separate.
A Cohabitation Agreement goes into effect once you and your partner sign it. If your wedding date is uncertain or far into the future, you can use this agreement to protect your interests right away. In many jurisdictions, a Cohabitation Agreement turns into a marriage contract if the common-law spouses eventually marry.
Although, if you decide to marry, it’s a good idea to create a Prenuptial Agreement. If you already have a Cohabitation Agreement, you can choose to include similar terms in your prenup. Terminate the first domestic contract before entering into a new agreement.
Unless you sign a Prenuptial Agreement, married spouses become fully responsible for one another’s finances. As such, you should know each other’s financial situations, including any debts or liabilities. Decide what parts of your financial life you’d like to combine and what you’d like to remain separate.
If there are any finances you’d like to keep separate from your partner, consider signing a Prenuptial Agreement. Similar to a Cohabitation Agreement, a prenup allows you to establish who retains ownership of specific assets and debts. However, this agreement only goes into effect once you marry.
A Prenuptial Agreement (commonly called a prenup) is not just for couples with significant assets, but for any couple looking to protect their personal property.
Create this legal document before marriage to set out each person’s current assets and liabilities and how to divide property if the marriage ends. This way, in the event of a marital breakdown, spouses don't have any claim to assets that they designated separately in the prenup.
Prenuptial Agreements are only valid if signed before you’re married since many of your assets could be considered marital property.
It might seem counterintuitive to discuss breaking up before you even get married, but you can never be sure of what the future might hold. It’s best to have this conversation with your partner beforehand, just in case.
To get married legally in Canada, you must:
The legal age for marriage varies by province, but in most cases, you must be at least 18 or 19 years old; if you’re between 16 and 18 years old, you may need parental consent. The exact minimum age to be married in each province or territory is as follows:
If this is not your first marriage, gather the appropriate documents to prove that you’ve legally dissolved your previous marriage. This can include a death certificate, divorce papers, or a court annulment.
Most provinces and territories require a marriage licence to prove that you meet all the legal requirements to be married. Requirements for applying for a license vary by province and territory (e.g., in some places, both spouses need to apply in person, while in others, only one spouse needs to apply).
In Quebec, a marriage licence is not required. However, you must publish a notice of marriage or civil union on the Directeur de l’état civil website for 20 days before your wedding ceremony.
Similarly, in the Northwest Territories, you can get a member of the clergy to do a publication of the banns for two consecutive weeks instead of getting a licence.
Some governments set the rate for a marriage licence, while others don’t. Prices can range from $20 to over $100.
Search your provincial government’s website for an authorized marriage licence issuer near you:
Process times can vary, but issuers typically grant a marriage licence immediately or within a few days of getting your application.
A marriage licence is only valid for a limited time (usually between 30 and 90 days), so plan your wedding ceremony accordingly. Note that in Newfoundland you must wait at least four days after getting your licence to hold your ceremony.
Once you’ve received your marriage license, the ceremony can take place. The ceremony must meet the requirements of your jurisdiction, which typically means:
As long as your ceremony meets the legal requirements, you’re free to choose the kind of ceremony you want. While you may personalize many aspects of your wedding ritual, there are two main types of ceremonies:
It’s important to note that proxy marriages (in which one or both spouses are not physically present) are currently not permitted by any provincial or territorial Marriages Act. Similarly, Immigration, Refugees and Citizenship Canada (IRCC) generally does not permit proxy marriages for immigration purposes.
Your marriage commissioner files your registration with the Vital Statistics Agency in your jurisdiction. Once they register your marriage, you can apply to receive a certificate for proof of marriage.
Marriage is more than a romantic commitment to another person—it’s a legal commitment as well. Here are the legal aspects of marriage you should consider.
When you sign your marriage certificate, it doesn’t automatically change your name. It’s also not a legal requirement to change your surname after marriage. In fact, people are increasingly keeping their given name for many personal and economic reasons.
There are no legal consequences for keeping your given surname. However, if you have or want children, it might present some minor obstacles if you have a different surname from them. For example, if you’re travelling to the United Kingdom and have a different surname than your child, you’ll need to provide proof of your relationship.
In most of Canada (excluding Quebec), you can assume a name change without needing to update your legal certificates and I.D.s. In this case, simply contact the agencies where you’d like to update your information and show your marriage certificate as proof of your new relationship status.
If you want to formally change your surname, you’ll need to apply to government agencies for a new birth certificate and other official forms of identification. In this case, you’ll likely need to undergo a criminal record check, which, in some provinces, includes fingerprinting for identity and security management.
A person cannot refuse to be a witness in a court case because they are married to the person charged with a crime.
However, under the Canada Evidence Act, spouses who testify in court have the right to refuse to answer questions about what their spouse said to them during their marriage. In other words, a court cannot compel a spouse to reveal the private conversations they had with their husband or wife while they were married.
Unless you specify otherwise in a Health Care Directive, many healthcare professionals will defer to your spouse for healthcare decisions when you can’t make them for yourself. So, if a medical issue leaves you incapacitated and unable to consent to a certain treatment or procedure, your spouse typically becomes your substitute decision-maker.
To that end, you should discuss your thoughts on medical procedures with your significant other and complete a Living Will to document your treatment preferences. If you don’t want to give your spouse the responsibility of making health care decisions on your behalf, you can use this document to appoint someone else to be your health care agent (also known as a proxy).
From shared assets to joint benefits, marriage typically changes the way you handle your finances.
If you’re in a long-term relationship, chances are you’ve already started combining some finances with your significant other. Many couples share a bank account to pay for bills, such as rent, utilities, or phone plans.
Although it’s up to you to share access to certain accounts, your spouse becomes entitled to a portion of your estate once you’re married. Even if you divorce, you may still be partially responsible for supporting your ex-spouse financially. To modify this entitlement, you must agree to terms in a Separation Agreement or specify separate assets before your wedding day.
A Prenuptial Agreement specifies the assets that are shared and separate in a marriage, helping to determine:
Although some people may be reluctant to sign a prenup, it’s especially beneficial if you have children from a previous relationship or have significant assets that you wish to keep separate.
Once married, any assets (such as real estate, vehicles, and more) that you and your spouse collect are known as matrimonial or family property.
Often, one of the most significant investments a married couple makes is their home and the furniture, appliances, and personal items that they fill it with. Generally, both spouses have an equal right to the family home (even if one spouse owned it before marriage) if they separate. As such, it’s important to understand who is entitled to what during and after marriage.
In Canada, the provinces and territories regulate the division of marital property during a divorce, and the laws vary by jurisdiction. Courts typically divide family property equally. Although, certain property (e.g., inheritances or gifts) may be exempt.
Courts often respect any property division terms that the spouses agreed to in a domestic contract (such as a Cohabitation Agreement, Prenuptial Agreement, or Separation Agreement) if the terms are fair. If you wish to have more control over property division during a divorce, you should create a domestic contract to establish shared and separate property with your spouse.
Married couples have the option to file joint or separate tax returns. To determine whether you’re eligible to file jointly, you must be married before December 31 of the tax year. If your wedding is not until the following January, you still qualify for single tax filing.
Filing a joint return has several benefits, including deductions and borrowing personal tax credits to lower the tax bracket of one partner. Though, in some cases, filing taxes individually may also lower your tax bill. Be sure to consult with an accountant when determining your tax filing status.
An excellent advantage to marriage is the ability to name your spouse as a beneficiary on various health, retirement, and financial insurance plans.
For instance, you can list your spouse as a beneficiary in:
If one spouse dies without creating a Last Will and Testament, most jurisdictions consider the surviving spouse the first person with a claim to the inheritance. Also, the surviving spouse typically gets a preferential share when dividing the estate between descendants. However, provincial and territorial laws for estates and succession can vary.
To prevent disputes about who is entitled to what, create a new Last Will and Testament when you get married to ensure it reflects your current wishes. If you want to allocate a certain portion of your estate to your significant other, do so explicitly in your Last Will. You should also specify which assets you want to leave to other family members and friends.
If you’re thinking about getting remarried, there are some things you should do to protect yourself, your family, and your future spouse (especially if things don’t work out).
This suggestion may seem absurd, but attempting to get married without being properly divorced can happen. This is mainly because the difference between separation and divorce can be unclear.
A separation means a couple is not together anymore, but it doesn’t mean they’re legally divorced. Married couples who separate might reconcile in the future and remain married. To get divorced, the couple must apply to a court and establish a complete breakdown of their marriage. This can be established if:
To confirm the legality of your separation and get your divorce certificate, contact the court registry where you held divorce proceedings. You’ll need the court file number or the full names of the parties in the divorce. If you’re unsure which court to contact, the Central Registry of Divorce Proceedings may assist you in finding the right information.
A Prenuptial Agreement seems ominous because it addresses how to divide family property after your relationship ends. Still, this agreement is beneficial, especially if you:
Prenups can save a lot of headaches (and heartaches) for you and your spouse if things don’t work out.
Do your estate documents still reference your previous relationship? Be sure to update your Power of Attorney and Last Will and Testament to reflect this new chapter of your life.
It’s impossible to know when you or your loved ones might need these documents, so to protect yourself, your family, and your future spouse, you should ensure your estate documents accurately reflect your current situation.
A good rule to follow is to update your estate documents after any significant life events (including having or adopting a child, purchasing a home, and more).
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Postnuptial Agreement
A Postnuptial Agreement is a contract used by a married couple to sort out current and future financial and property matters in the event of a separat...
Cohabitation Agreement
A Cohabitation Agreement is used by couples who are not legally married, but want to live together in a shared residence. It addresses property, debts...
Last Will and Testament
A Last Will and Testament allows you to specify how you would like your property and assets divided after your death.