Your Guide To Postnuptial Agreements in Ontario

Key Takeaways

• A Postnuptial Agreement is a legally binding contract that a married couple creates after their wedding, while they remain together.

• This Agreement outlines how property, assets, debts, and other financial matters will be divided if a couple divorces.

• To be legally enforceable, the Postnup must include full financial disclosure, voluntary consent, fairness, and proper witnessing.

• Couples can draft a Postnuptial Agreement themselves, but seeking independent legal advice and commissioning it with a notary strengthens enforceability.

• Make your Postnuptial Agreement enforceable by booking your online notary appointment with NotaryPro today.

When a couple gets married, breaking up and Postnuptial Agreements are often the furthest thoughts from their minds. However, a Postnuptial Agreement is an effective legal tool that can offer both parties significant financial protection.

This Agreement can help you plan responsibly and reduce unnecessary confusion in case of divorce. In this guide, we’ll walk you through how a Postnuptial Agreement works in Ontario and how to create one that fits your relationship.

What is a Postnuptial Agreement in Ontario?

A Postnuptial Agreement is a legally binding contract that a married couple creates after their wedding, while they remain together. Like a Prenuptial Agreement, it outlines how property, assets, debts, and other financial matters will be divided if the couple divorces.

In Ontario, a Postnuptial Agreement can also address inheritance and estate planning, which is especially valuable for spouses with children from previous relationships. Including these matters ensures that family assets and legacies are protected according to each spouse’s wishes.

The key difference between a Prenuptial and a Postnuptial Agreement comes down to timing. A Prenuptial Agreement is signed before a marriage, while a Postnuptial Agreement is created after a couple is already legally married.

Other common terms for a Postnuptial Agreement include:

• Postnup
• Postmarital Agreement
• Marriage Contract

Why Are Postnuptial Agreements Important?

A Postnuptial Agreement is a proactive way for spouses to protect their interests and maintain transparency in their marriage. 

In the event of a separation or divorce, having a Postnuptial Agreement in place can:

• Safeguard each spouse’s finances, property, and assets
• Clearly establish ownership of a home, business, or other significant assets
• Save both parties money by avoiding lengthy legal disputes
• Prevent costly or complex court battles
• Minimize conflict and help both parties move forward more easily
• Encourage honesty, transparency, and trust in your relationship
• Provide greater control, allowing you to make financial decisions outside of court
• Ensure the wealthier spouse doesn’t lose an unfair portion of their wealth, and the less wealthy spouse is adequately supported (if applicable)

How Does a Postnuptial Agreement Work in Ontario?

A Postnuptial Agreement is activated when you and your spouse separate, divorce, or if one of you passes away.

If both spouses agree to follow the terms, the Agreement can significantly simplify the legal process, minimize costs, and reduce stress. If one spouse challenges it in court, a judge will review the document. They’ll check to ensure it was made fairly, with full financial disclosure, and in compliance with Ontario’s Family Law Act.

Assets Addressed in a Postnuptial Agreement

In Ontario, a Postnuptial Agreement outlines how you and your spouse will divide personal and shared property. Shared property, also known as marital assets, refers to assets that both spouses own, either jointly or because they were acquired during the marriage. An asset can be considered a joint asset if it was purchased by both spouses or simply acquired during the marriage.

You’ll also want to ensure that the ownership of your personal assets remains with you. Personal assets refer to the assets one party acquired and owned before the date of the marriage. 

See a list of assets you can include in your Postnuptial Agreement below:

• The matrimonial home
• Vehicles
• Businesses
• Real estate purchases
• Retirement savings, pensions, or RRSPs
• Investments such as stocks or bonds acquired after a wedding
• Joint and individual bank accounts 
• Personal property of high value (e.g., jewelry, art, antiques, or collectibles)
• Life insurance policies 
• Intellectual property (e.g., royalties, patents, trademarks, or copyrights)
• Future inheritances or gifts

When Can You Create a Postnuptial Agreement in Ontario?

You can create a Postnuptial Agreement any time after you get married, whether you’ve been married for a month or several decades. 

That said, a Postnuptial Agreement is not the right document if you have already decided to separate or divorce. If you’re planning to part ways, you should use a Separation Agreement instead. 

Creating a Postnup while anticipating divorce can risk the contract being challenged in court. This is because after marriage, spouses acquire automatic property and support rights under Ontario family law. A Postnup typically involves one spouse giving up some of those rights, and courts want to ensure that the Agreement was made freely, without coercion.

Life Circumstances That Require a Postnuptial Agreement

There are many reasons a married couple may decide to create a Postnuptial Agreement. Here are some situations where a Postnup can be especially valuable:

• Major financial changes: You inherit a large sum, start a profitable business, or experience a significant change in income or assets.
  
• Rebuilding after challenges: You and your spouse are working through marital difficulties and want to address financial concerns to strengthen trust.
  
• Updating old financial arrangements: The financial expectations you set at the start of your marriage no longer reflect your current reality.
  
• Estate planning for blended families: You want to make sure certain assets go to your children from previous relationships.
  
• Addressing spending concerns: You want to set clear boundaries if you are worried about your spouse’s financial habits.
  

What Can You Do With a Postnuptial Agreement?

A Postnuptial Agreement gives you and your spouse the ability to manage your financial future even after the wedding. This Agreement helps reduce uncertainty, protect your interests, and set clear expectations if your marriage ends. With a Postnup, you can:

• Protect ownership of personal and business assets: Ensure that personal property, inheritances, investments, or businesses acquired before or during the marriage remain yours and are not treated as joint assets.
  
• Address debts and liabilities: Clarify responsibility for existing debts and prevent one spouse from being held accountable for the other’s personal or significant obligations.
  
• Set clear terms for spousal support: Establish expectations for financial support in the event of separation, which can help minimize disputes later on.
  
• Ensure fairness for children: Safeguard assets or inheritances meant for children, protecting their rights and financial security.

How to Create a Postnuptial Agreement in Ontario

Creating a Postnuptial Agreement requires careful planning, full financial disclosure, and clear communication between both spouses. Take the following steps to help ensure your Agreement is fair, meets your specific needs, and is enforceable in Ontario:

1. Provide Basic Details About the Parties

List the full legal names and home addresses of both you and your spouse.

2. Outline Separate and Shared Assets

Outline separately owned assets for each party and shared assets that belong to both parties. Specify how you want shared assets to be divided if your marriage ends. Without a marriage contract, Ontario courts may divide shared assets and property 50/50 or in a way they consider fair (equitable distribution). 

3. Detail Separate and Joint Debts

Clearly outline any debts in your Postnuptial Agreement, separating individual and shared obligations. List any debts that belong solely to you or your spouse, and indicate that the debt owner will be responsible for paying them.

Also include joint debts, such as co-signed loans, joint credit cards, or a shared mortgage. Then, decide how shared debts will be divided. Many couples choose a 50/50 split, but you can agree on another arrangement that works for both of you.

4. Include Information About Children

List any relevant children, whether from this marriage or previous relationships. While the court decides custody and child support, you can clarify children’s inheritance rights (including adult children’s). You can also outline provisions such as:

• Education and funding plans
• Guidance on values, cultural practices, or religious upbringing
• Inheritance and protection of financial interests

5. Set Spousal Support Terms

Spousal support, also known as alimony or spousal maintenance, is a financial payment made by one spouse to the other after separation. Its purpose is to help the lower-earning spouse maintain a reasonable standard of living after the marriage.

In your Agreement, you can outline whether spousal support will be paid, and if so, specify the amount, duration, and conditions. 

• Who will pay and who will receive spousal support
• The specific amount of payments made
• Frequency of the payments
• Payment method

Including spousal support in your Postnuptial Agreement is optional. However, if you choose not to include it and end up in court, a judge may determine support obligations for you.

6. Address Spousal Inheritance

You may choose to limit what your spouse inherits from your estate, which is especially important in blended families where you want to ensure certain assets go to children from previous relationships. Any restrictions should align with your Last Will and Ontario estate law.

7. Outline Financial Responsibilities and Spending

Clarify how joint and personal bank accounts are handled, how credit is obtained, and outline any spending agreements. You can also include who pays certain bills, who manages and pays taxes, and how credit is obtained or managed. 

Can You Create a Postnuptial Agreement Without a Lawyer?

Yes, you can create a Postnuptial Agreement without hiring a lawyer. Many couples choose this route when they want to save on legal costs or simply prefer to draft their own terms together. If you and your spouse have an amicable separation and agree on fair terms, you can draft a valid Postnuptial Agreement. 

However, independent legal advice (ILA) is always recommended. A lawyer’s review ensures you both understand your rights and reduces the chance your Agreement will be challenged in court. 

Is a Postnuptial Agreement Legally Binding in Ontario?

A Postnuptial Agreement is legally enforceable in Ontario if it meets the legal standards for a valid domestic contract. Under Ontario’s Family Law Act, a judge may set aside or invalidate a Postnup for several reasons, including:

• Non-compliance with the law: The Agreement must comply with Ontario’s contract laws. Any clauses that are illegal or contrary to public policy may be unenforceable.
  
• Lack of understanding: Both spouses must understand the terms and impact of the Agreement. If one spouse did not fully grasp its meaning, the court may invalidate it.
  
• Incomplete financial disclosure: Each spouse must share complete details of their assets, debts, and financial circumstances. Hiding or omitting information can make the Agreement invalid.
  
• Coercion or pressure: The Agreement must be signed freely and voluntarily. If one spouse was pressured or unfairly influenced, the Agreement may not stand.
  
• Extremely unfair or unreasonable terms: If the terms are grossly one-sided, the court has the authority to revise certain provisions or set the Agreement aside.
  
• Not in the Best Interest of the Child: Any part of the Agreement that doesn’t serve the best interests of a child can be disregarded by the court.
  

To ensure enforceability, your Postnuptial Agreement should also include these contract essentials:

• Offer and Acceptance: Both spouses must negotiate the terms and voluntarily sign the Agreement.
• Consideration: Each party must exchange something of value, such as agreements on asset division or spousal rights.
• Mutuality: Both spouses must enter into the Agreement honestly and with truthful intentions.
• Legality: The terms cannot violate Ontario law; illegal provisions will make the Agreement unenforceable.
• Capacity: Both parties must be legal adults of sound mind when signing.

Additionally, a Postnuptial Agreement must:

• Be in writing.
• Be signed and dated by both spouses.
• Be witnessed by at least one adult who isn’t a party to the Agreement.
• Be signed after full disclosure of all assets, debts, and relevant financial circumstances.

Signing and Witnessing a Postnuptial Agreement in Ontario

To make a Postnuptial Agreement legally binding in Ontario, both spouses must sign the document in the presence of an adult witness. Your witness should not be directly involved in or affected by the Agreement. The witness must also sign and date the Agreement, confirming they’ve observed the signing. This step ensures the Agreement meets legal requirements and helps prevent future disputes about its validity.

Having an authorized official, like a notary public, present adds additional credibility to the Agreement, confirming each spouse’s identity and voluntary participation.

Commissioning Your Postnuptial Agreement with a Notary

We highly recommend having a notary public formally commission your Postnuptial Agreement. During commissioning, each spouse swears or affirms that they are signing the Agreement willingly and that they fully understand its contents. 

Commissioning supports enforceability in court, as it demonstrates proper signing, making it difficult for either spouse to later claim they were pressured or uninformed. A commissioned Agreement also provides independent verification of identities and signatures.

Schedule an online notary appointment with us to commission your Postnuptial Agreement. The entire process takes less than 7 minutes and can be completed from anywhere in Canada using your phone, tablet, or computer.

Protect Your Future With a Postnuptial Agreement

A Postnuptial Agreement is a proactive way to safeguard your finances, set clear expectations in your marriage, and reduce future conflicts. This Agreement can cover property division, spousal support, debt allocation, and inheritance rights, giving you clarity and protection for the future.

Once you’re ready to finalize your Agreement, book an online notary appointment to have it commissioned quickly, securely, and on your schedule.

Take control of your future today. Draft your Postnuptial Agreement with confidence and ensure your assets, rights, and family are protected.