What’s black, white, and totally free? An online free Ontario prenup template! Okay, jokes aside, online prenup templates can be a risky option when it comes to the ways to get a prenup. Sure, they’re accessible and cheap, but will they hold up in court? Will they meet your needs? A prenup is a contract signed by future spouses that is meant to protect both parties and outline various financial terms. Going the cheapest route with a free prenup template comes with its risks. So, let’s get into everything you need to know about free prenup templates in Ontario and if they’re legit.
What is a prenup (marriage contract) in Ontario?
A prenup, also known as a marriage contract in Ontario, is a contract between two future spouses outlining their division of property, spousal support, and other financial matters. The goal of a prenup is to provide clarity and certainty in the relationship regarding financial matters and also streamline decisions in case of separation or divorce. In order to create a valid prenuptial agreement, couples must follow the rules of Ontario law (more on this below).
The appeal and limitations of free online prenup templates
Let’s talk about what works with free online templates and what doesn’t. Here are some advantages of using online prenup templates:
- Affordable: Downloading a free online template is cost-effective. Some websites offer this for free or low cost.
- Accessibility: Using online templates is easy to get. There’s a very low barrier to entry, it’s usually a matter of simply downloading a Word doc.
And that’s about it as far as free prenup templates go. Now, let’s turn to the disadvantages and risks:
- Generic: Free online templates are usually generic and meant to address the masses—not for each unique couple. This can lead to creating a prenup that doesn’t actually match your financial circumstances and goals. Worse, many agreements use U.S. law which is not applicable in Canada.
- Lack legal requirements: Ontario-specific legal requirements may not be met, making the agreement unenforceable. For example, the agreement may not take into consideration the requirements of The Family Law Act. For example, it may include terms about occupation of the marital residence which is explicitly prohibited.
- Ambiguous language: The agreement may include contradictory or ambiguous terms, which can be problematic for a court when trying to determine how to enforce the agreement. This is the number one challenge for people trying to uphold an agreement. Confusing language will not be construed usually in the way you want it to.
- Lack of advice: Free online templates typically do not include educational materials and/or legal advice to guide you on best practices for executing the agreement, such as notarization and information on commingling. You won’t know what rights or obligations you have and are agreeing to waive. The agreement will then get challenged for lack of legal advice.
Ontario’s legal requirements for a valid prenup
Let’s discuss what is required for an Ontario prenup to be valid and enforceable. According to the Family Law Act (R.S.O. 1990, c. F.3), here’s what you need to create a valid prenup:
- Must be in writing
- Must be signed by both parties
- Must be witnessed by one party
- Must include full and accurate financial information
- Independent Legal Advice isn’t strictly required, but it can be grounds for setting aside the agreement
- Must be entered into voluntarily by both spouses
- Must not be unconscionable (egregiously unfair)
Why free online templates may fall short in Ontario
As you can see from the requirements above, there are several issues with free online templates and how they may fall short in Ontario. First, the free download doesn’t come with a witness—and having a witness attest to your Ontario prenup is required. Second, a free downloadable prenup template may not prompt you to fill out your financial disclosure properly. For example, will you know how to include the value of your business?
Third, the free download may include prohibited clauses under Ontario law. One example of a prohibited clause is marital residence occupancy. Fourth and finally, a downloadable free template may fail to account for each unique financial situation, family dynamics, and life goals. This could leave you with a prenup that doesn’t make sense for you and you could potentially still be held to its terms.
Example prenup template terms
To give you an idea of what’s typically included, let’s take a look at the common elements found in Ontario prenup templates:
Party names and recitals
This part of the template states who the parties are, when they entered into the agreement, and the circumstances surrounding the execution of the agreement. For example, how many kids each person has, their goals for the prenup, their wedding date, and other details.
Definitions
The next part of the agreement may include the different definitions of terms that will be used throughout the agreement. This may include definitions of what “divorce” or “end of the marriage” means and what is included in the term “property.”
Property division
This section of the prenup will generally discuss how property should be divided. In Ontario, this generally means describing exactly which property will be excluded from the equalization payment. For example, making sure property owned prior to the marriage and any increase in value of such property, plus any exchange of this property, should be excluded from the equalization payment.
Spousal support
Prenups generally address spousal support in Ontario, even if just to say, “we will not address this in this agreement.” Spousal support is the financial support from the more-monied spouse to the lesser-monied spouse. Couples may choose to not make this decision now and decide at the time of divorce, they may waive it altogether, or modify it in some other way.
Date of Marriage (DOM) Residence
It is common in Ontario prenups to address the Date of Marriage (“DOM”) residence. This is the residence that the couple is living in at the time they get married (or around the time). Addressing this residence is common in order to make sure the owner of the residence retains ownership and it doesn’t get equalized as part of the marital estate.
Family residence
The family residence is generally regarded as the home that the couple purchases during the marriage, and they live in together as a family. It is also important to address this residence in a prenup, depending on how they plan on paying for it.
Debts and liabilities
Addressing debts and liabilities is important to ensure that neither party becomes responsible for the other’s debt and outlining who is responsible for what.
Estate waivers
Because a prenup trumps a will, it is important to address estate rights in a prenup and ensure that the terms don’t conflict and that the prenup points to the will. In a prenup, it is common to waive the estate rights altogether to allow the terms within the will control.
Other clauses
There may be other optional clauses included, such as lump sum payments, confidentiality clauses, and pet custody clauses. These are optional and may not be included in every prenup template.
General clauses
Every contract has a list of general clauses, such as the province laws that apply to the contract, whether one clause being invalid makes the entire agreement invalid (severability clauses), and more.
Signatures and witnesses
At the end of a prenup template in Ontario, there should be places for each party to sign, plus the witness that will attest to their signatures.
The bottom line on free prenup templates in Ontario
Well, there you have it, folks—everything you need to know about online prenup templates in Ontario. Our summary is to not take a risk on free prenup templates as they can lack proper legal requirements and lack proper customization, leaving you with an agreement that is unenforceable and/or doesn’t make sense for your life! While it may be tempting to download one (they’re free, after all), it’s worth the investment to get a trustworthy Ontario prenup through a reputable online service and/or lawyer. And remember, a prenup is an investment for your future, so it’s worth the money! Happy prenup planning!
Anna-Marie Musson is a Family Lawyer with over 20 years’ experience. A graduate of Windsor Law, Anna-Marie began practising in 2003. She was a partner at a prominent national Bay Street law firm before starting her own firm. Anna-Marie helps professionals and high net worth clients navigate the financial, emotional, and legal issues in divorce and separation. She also helps clients preserve their net worth and avoid financial ruin with Marriage Contracts (Pre-nups) and Cohabitation Agreements. Anna-Marie is the host of the Modern Divorce Show on 105.9 The Region and also hosts the upcoming Podcast – Love & Wealth.
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