Marriage Contracts and the LGBTQ+ Community

June 23, 2022
Rosemary Bocska

Article written by Rosemary Bocska

June is Pride Month. This is when we put focus on the strengths, challenges and societal role of the LGBTQ+ community. Many strides have been made over the years. Among them is the recognition of marriage for same-sex couples, which has been in place since the mid-2000s.   

In Canada, marriage is no longer preserved for the traditional “man + woman” couple. Instead, a valid marriage can take place between any two people. This means relationships of all types, including those between members of the LGTBQ+ community, are fully recognized by law. 

LGBTQ+ and the Shift in Marriage Laws:

Following a series of rulings in 2003/2004 by courts across the country, Canada now lawfully recognizes marriage between LGBTQ+ couples. This was a huge shift in the legal landscape.

This change comes from the federal Parliament’s enactment on July 20, 2005, of the Civil Marriage Act, SC 2005, c 33. The statute states that marriage for civil purposes is “the lawful union of two persons to the exclusion of all others”. The wording is direct, but it’s really the lengthy Preamble to the Act that makes its purpose clear. It speaks of marriage being a “fundamental institution in Canadian society”. It claims marriage “strengthens commitment in relationships and represents the foundation of family life for many Canadians”. Lastly, it aims for “equal access to marriage” for couples of the same sex, in light with the values of “tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms.”

So it’s clear that Canadian society values the institution of marriage. This leads us to explore  the legal concept of a Marriage Contract(also known as a Pre-Nuptial Agreement). It’s one of several types of agreements that fall under the term “Domestic Contract”. A Cohabitation Agreement is another. This applies to those who are partnered but don’t plan to legally marry.

marriage contract

Is the Law on Marriage Contracts Different for LGTBQ+?

This can be the burning question for some. The short and simple answer is “No”. Just as Canadian law declares marriage between same-sex partners to be legally identical to heterosexual couples, so are Marriage Contracts. It is simply a written agreement that outlines how the two will deal with each other and their assets/liabilities during several stages of the relationship.  Those stages typically include:  1) the period while you are together; 2) the period after you break up; and 3) the point at which one of you dies.

How Are Marriage Contracts Created?

The Ontario Family Law Act defines a Marriage Contract as being an agreement entered into by “two persons who are married to each other or intend to marry”. The Family Law Act also dictates the correct manner for creating a legally valid contract. This is important since it is really just a specific form of binding contract. There are also some general contract law principles that apply.  

To make a binding Marriage Contract with your partner, you must ensure that it:

  • Is in writing, signed, and witnessed;
  • Follows upon complete disclosure by both of you, in terms of your respective assets, debts, and other liabilities;
  • Is founded by each of you having independent legal representation and advice given on how the contract impacts your rights;
  • Is the result of equal bargaining power between you (i.e. with no fraud, undue influence, duress or unconscionable circumstances between you).

All of these conditions have to be in place, if you want your Marriage Contract to be valid and enforceable. Also, it must be clearly worded, accurate, and cover only those topics and matters that are specifically allowed-for under the Act. These include:

  • Ownership in, or division of, property that one or both of you own;
  • Support obligations between you and your partner;
  • The right to direct the education and moral training of any children you have together; and
  • Any other matter in the settlement of your affairs.

The Family Law Act does not allow you and your partner to make an agreement pertaining to custody or access to children. Instead, these are governed by separate federal and provincial laws that focus on your children’s best interests.

Can A Marriage Contract be Overturned?

A Marriage Contract will be fairly iron-clad if you and your partner freely negotiated and agreed to it. This is especially true if you had independent legal advice before you did so (as you should).

With that said, in some situations a Marriage Contract can be overturned. However, there are many hurdles to jump through, and legal tests to meet. Courts will be reluctant to overturn an agreement that you and your partner have freely negotiated. They will generally not substitute its own ideas of what was “fair” in your case at the time your agreement was reached.

Do We Really Need a Marriage Contract?

On the day-to-day level, marriage in between partners in the LGBTQ+ community are of course no different from any other relationship. All marriages start off well, and can take many twists and turns.  Some, unfortunately, do not last. 

If done correctly, a Marriage Contract is always a good idea. It is a freely-negotiated, fair agreement that you and your future spouse commit to in writing, at a time when you are in a “happy place” in your relationship (i.e. before marriage). Admittedly, it does address the worst-case scenarios, but it’s better to do that when you are in a good and optimistic mindset towards each other, rather than when your goodwill and good feelings have evaporated.

Speaking of good feelings:  Happy Pride Month, from Shulman & Partners LLP!