Frequently Asked questions

A Modern Marriage Contract is a living, breathing document that can and should be updated as your marriage or relationship progresses, as long as it is done properly under the law. 

What you and your partner want to include in the Modern Marriage Contract, for the most part, is entirely up to you. As long as you are honest in your discussions and you are both in agreement, most things can be included in the contract.  You decide what will happen to the assets, should you break up. 

The law works in such a way that any property coming into the marriage is separate and will be excluded but the growth in the value of the property is shared. This can include things like real estate (not matrimonial), bank accounts, investments, businesses.  Many couples use a Modern Marriage Contract to protect the growth of assets from being shared. 

The matrimonial home, including the value of the down payment or the value of the increase in this home, is often included in these agreements. This is especially the case if the parents of the couple are contributing towards the payment of the matrimonial home. It’s important to protect your parents’ money. 

If you are self-employed as a business owner or an entrepreneur, having to value your business on separation and share in the value can seriously affect your operations and your net worth. A Modern Marriage Contract can set out a fair division or exclusion of business interests. 

In a Modern Marriage Contract, you can define what property is accumulated in both names and will be is shared, and what will remain separate. You can also add high-ticket items that are gifts from one spouse to the other.

Pensions or retirement benefits, RRSPs and TFSAs all can be subject to a claim for equalization or a trust claim. In many cases, this is a significant amount that will need to be shared on break up and can impact a person’s retirement plan.

Debt can be included in a Modern Marriage Contract. You can establish that one person’s debt remains their debt and will not be included in the equalization. However, this will not impact the third-party lender (like a bank) from being able to collect on debts by using joint assets or where the other party co-signed the loan. 

The law as it is on the date of separation applies.  What does the law say now? For property claims, the amount of the increase in value during the marriage is shared between married spouses. Property includes homes, cottages, pensions, investments, bank accounts, art, expensive collections, basically anything that has some value. Even if your spouse is not on title to one of your properties does not mean he or she will not share in the value. For unmarried spouses,  it is not uncommon to see a trust claim where one party makes a claim to share in the value of the other’s property.  These are complicated and expensive to pursue and defend. The much easier solution is to address it in a Modern Marriage Contract.

The matrimonial home also has special considerations. If one party enters the marriage with the home or puts a more significant amount down on the home (either themselves or their parents), there is no date of marriage exclusion. This means the entire amount of the matrimonial home is shared, as though you both contributed equally, even if you didn’t. If you made a contribution towards the matrimonial home or your parents loaned you the money, a Modern Marriage Contract is essential. 

In our experience, it is best to have the conversation on what will happen to these assets if you break up, while you are together and in a rational, loving mindset.  

Making an arrangement about the payment or release of spousal support can be difficult to include in an agreement. The reason being, there are many unknowns, especially after a long term marriage and when children become involved. A circumstance that was not contemplated at the time of the contract may result in a release of spousal support or make an agreement of spousal support invalid.  It is not impossible to include this but it will require a more extensive contract. In many cases, it is a better option to leave spousal support out of the Modern Marriage Contract and the issue of entitlement and amount will be determined by the law as it is at the time of separation.

Like all difficult conversations in life, how you say it and your word choices matter. If you think a Modern Marriage Contract might be a good idea, it is best to bring it up with your partner as soon as possible. Keep the conversation relaxed and open. Many times, it is an ongoing conversation. 

It’s important to be honest about why you want it, maybe it is explaining your family history and beliefs or maybe it is a sentimental gift from your grandfather that you want to preserve. Listen to your partner’s response. You don’t want them to feel attacked or that you don’t trust them. Try to put yourself in the other person’s shoes. Be prepared to compromise where needed. A little sensitivity will go a long way. 

To some, the concept of a “contract” feels corporate and supremely unromantic and is set up to drain a relationship of its natural spontaneity. People see it as a legal document, where if you didn’t keep up your side of the bargain, you would be punished. Seen that way, a contract might make a relationship a little too easy to end. This description is old fashioned and unnecessarily legal, when that’s not really the point. 

More important than the document, are the conversations sparked by the process of creating it. We have even had some couples make a night of it – such as ordering in a special dinner. 

The benefit of the Modern Marriage Contract is that both people have a lawyer representing them and both people are involved and collaborating in the entire process. No one feels left out. Everyone has the opportunity to ask questions and bring up issues both in a joint session or with his/her lawyer separately. 

After the contract is prepared, and before you both sign, you have a separate meeting with your own lawyer where they will explain the terms of the contract and what you are signing. Your lawyer will also explain what you are giving up or what you are giving to the other side. Once you have clarity, you will then sign the Modern Marriage Contract. 

 
You and your partner can take as much time as possible to feel comfortable with the agreement before signing.