What Is a Prenuptial Agreement?
A prenuptial agreement is a legal document that details what assets each party brings to a marriage and how they should be handled in the event of the marriage’s end. (A similar document known as a cohabitation agreement exists for those who want to live together without marriage.) It’s particularly common where one of the spouses has more assets or anticipates receiving a large inheritance or some other gift.
People often think setting up a prenuptial agreement means they don’t believe their marriage will last. That’s not at all the case. Many people end up not needing the prenup (as it’s called for short), but those who do may be glad they have it. It’s also a good way to have an open, honest discussion with a partner-to-be about the always difficult topic of finances and priorities. Think of it as somewhat similar to home insurance–you hope you never need it, but if something happens, you may be relieved it’s in place!
Prenuptial agreements can be simple or complex, depending on what needs to be included. That, in turn, affects how long it takes to develop. Plan and allow plenty of time to ensure you’ve carefully considered everything that applies in your situation.
What Is Legally Required to Set up a Prenuptial Agreement in Saskatchewan?
One of the primary legal considerations is detailed in the Family Property Act: For the agreement to be considered binding, each spouse must have a lawyer to provide them with independent legal advice. While this may sound like it complicates the process, it’s actually a positive; when each spouse has separate representation, it’s much more difficult for one spouse to coerce the other into accepting terms they disagree with.
The agreement must be in writing, signed by both spouses, and witnessed. It can include the division of assets and debts and is to include full disclosure from each spouse. It’s possible to set the grounds for spousal support or to waive that support; however, this is something to have a thorough discussion about especially if one spouse is the primary caregiver for the children while the other spouse is advancing their career. One thing that should not be included in a prenuptial is how parenting arrangements will be if the marriage ends. This should be handled separately as part of the separation and divorce process to ensure the arrangements are in the children’s best interests.
Why Should a Couple Set up a Prenuptial Agreement if They Don’t Have Many Assets?
It’s a logical question; if there isn’t much to divide, why spend the time and effort determining how it should be divided at a later date? The primary answer to that question is: Things change. One spouse may find themselves earning more money than they’d expected; they might receive an unexpected (or expected, for that matter) inheritance; significant debts may be accrued by one or both spouses; or the couple may have children, and one spouse either leaves their career or takes a reduced role to become the primary parent. These future items can have a substantial impact if the marriage doesn’t survive.
Why Shouldn’t a Couple Just Draw Up a Prenuptial Agreement on Their Own?
The first reason a couple shouldn’t do this on their own is that it may not be legally binding because the Family Property Act referenced above requires each party to have their own lawyer in order to meet the definition of an “interspousal contract”. But there are other good reasons, too. Working with an experienced prenuptial agreement lawyer can help you avoid pitfalls that could eventually cause the agreement to be deemed invalid by the court.
- Ensure the terms of the agreement are legally valid so that you aren’t relying on something that would not be upheld by a court.
- Neither party withheld information. The prenuptial may not be upheld if one spouse failed to disclose certain assets or debts.
- Any sign of coercion. If both parties had a lawyer, but on the eve of the wedding, one spouse forced the other to accept last-minute changes without input from their lawyer, the agreement could be invalidated.
- Unfair provisions. It’s not surprising that sometimes, one party would want to saddle the other with all the family debt or refuse to share assets. But the court will consider the fairness of the agreement and may refuse to honour it if it is grossly unfair.
Can a Prenuptial Agreement Be Changed or Revoked Later?
Yes. Couples can change the terms or fully revoke the prenuptial agreement after it’s been signed and witnessed. However, both parties must agree to the changes or revocation in writing to do so. To ensure that the changes or revocation are valid, it’s highly recommended to have a prenuptial agreement lawyer review.
What Is a Postnuptial Agreement?
A postnuptial agreement is similar to a prenuptial agreement except that it’s drawn up after the couple are already spouses. It outlines how assets and debts are to be divided in the event of a separation. They can include items such as spousal support, but as with prenups, parenting arrangements can be referenced but will only enforced if they are in the children’s best interests.
What Should I Do if I Want to Set Up a Prenuptial Agreement?
We understand how uncomfortable this topic may be for you. As discussed above, wanting to protect your assets is not wrong or shameful. In the best possible world, you’ll never need to use the prenup to settle anything. But if you do, you’ll be glad to have it. Our compassionate prenuptial lawyers will help you take a holistic approach to viewing your future through the lens of the prenuptial agreement.
Call us at 306-975-7151 or send us an email to set up your consultation.