Article written by Kim Brown
It seems more couples are warming up to the idea of having a pre-nuptial agreement, also known as a marriage contract in Canada, before they say “I do.”
That’s a good thing.
Pre-nuptial agreements are similar to insurance; you hope you won’t have to use it, but you’ll be happy to have it should your relationship end. Pre-nups offer stability and clarity at a time when partners may be feeling confused and emotional.
Perhaps one reason why more couples are saying yes to pre-nups is because they can be highly customized to accommodate a couple’s unique circumstances.
Often, couples will include details about how they will divide property or assets, handle estate plans, and address spousal support if there is a breakdown of the marriage. But, some thoughtful couples have put everything from pets to debts in their pre-nups.
Even though pets are treated by the courts as property in Ontario and the rest of Canada, we’ve seen pet owners pay thousands of dollars to fight over the beloved family dog or cat. To avoid this, put your pet in your pre-nup.
Will you both get to have time with the pet at your respective homes? How will pickups and drop-offs work? Who will be in charge of medical expenses if the animal gets sick? Asking these questions may sound silly now, but they can become serious points of contention after a separation.
This one is relatively new, but some couples are including a social media clause in their pre-nup. What exactly does that mean? The clause will attempt to address what’s acceptable for partners to share online about each other, and about the relationship. If terms of the agreement are broken, then the person who did not follow the agreement may have to pay a hefty fine.
Heirlooms and Sentimental Items
If you’re really attached to something – a photo album, a mug, a chair – make it clear that you would like to have it in the event of a divorce.
The item doesn’t have to hold significant financial value for you to include it in your pre-nup.
A report from 2016 found that nearly 2/3 of Canadians who plan to marry or be in a common-law relationship are entering into the relationship with debt. A legal agreement lets you maintain your financial integrity if your partner is carrying a significant amount of debt. Without a pre-nup, creditors could go after marital property, even though only one spouse was responsible for the debt. Through a pre-nup, you can decide how debts will be handled if you get divorced.
Ideas can be just as valuable as tangible items, which why intellectual property is appearing in a few pre-nups. Young couples in particular have been including an intellectual property clause in their contracts. Music, art, literary works, films, and apps have all made it into pre-nups.
However, interpreting pre-nups for future intangible items could be very difficult, points out this New York Times article. As such, it is important for both partners to seek independent legal advice from a family lawyer before the pre-nup is signed.
This applies to every couple, not just the ones who want to protect intellectual property. A family lawyer will help you fully understand what you are agreeing to by signing the pre-nup, and let you know if you may be jeopardizing any of your legal rights.