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A wine collection worth six figures, visitation schedules for a beloved pet, a book divulging the details of a broken marriage – these are just some of the things Canadians try to secure in what’s commonly known as a “pre-nup.”
Often inspired by messy divorces among Hollywood and Silicon Valley elites – Bill and Melinda Gates, Jeff Bezos and MacKenzie Scott – a growing number of Canadians may be entering this wedding season with a pre-nuptial agreement.
In Canada, what many call a pre-nup actually refers to two different types of contracts: a cohabitation agreement for couples who aren’t married, and a marriage agreement for those who are.
Without one, assets of a married couple are generally split based on an equalization of net family property, meaning anything obtained during a marriage will be split equally.
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A February poll of Canadians aged 18 and older conducted by TD Bank found that 52 per cent of Gen Z respondents wanted their partner to sign a pre-nup.
That’s compared with an average of 31 per cent across the general population, and a sign that the next generation of married couples want some certainty over their assets before exchanging vows.
But while Canada’s neighbours to the south may sometimes have more freedom in what can be included in a pre-nuptial agreement, Canadian law makes it harder to uphold the silly or salacious. That doesn’t stop people from trying.
Vancouver-based Matthew Katsionis, a partner at Crossroads Law, said he’s had clients ask about clauses that stipulate, “if we separate, they have to buy me a house” or “pay my phone bill for next year.”
Others want infidelity penalties that state, “You cheat on me, I want to get paid,” he said.
Laurence Klass, partner at Watson Goepel, said he’s gotten questions about clauses dictating specific spousal roles or prohibiting a spouse from leaving town without permission.
“One party wanted to restrict the movement of another adult,” he said. “If something is contrary to public policy, then it’s unenforceable.”
A pre-nup refers to two different types of contracts: a cohabitation agreement for couples who aren’t married, and a marriage agreement for those who are.mofles/Getty Images/iStockphoto
Other clauses that won’t stand up in Canadian courts include penalties for gaining weight, stipulations around mandatory chores, religious adherence or the frequency of sexual relations, said Leanne Townsend, a senior divorce lawyer with Benmor Family Law Group.
Canadian family courts follow a no-fault model, meaning you don’t have to prove wrongdoing for a marriage to end. It also means you can’t impose penalties based on why the separation happened.
In the U.S., courts in California, Nevada and Hawaii may dismiss cheating clauses in pre-nups, but states such as Pennsylvania and Tennessee – where divorce on grounds of infidelity is permitted – may uphold them.
One newer and less clear-cut category is pet custody. While Ontario still legally treats pets as property, much like a couch or a car, there’s a shift happening.
British Columbia has already updated its laws to treat them similarly to family members rather than just possessions.
Mr. Klass in B.C. is increasingly seeing detailed provisions for family dogs and cats, including feeding schedules, vet visits and walking routines. “Pages and pages about the pet – but hardly anything about the children,” he said.
Intellectual property – such as revenue-generating blogs – can also be relevant assets in pre-nups, Ms. Townsend said.
Though she hasn’t personally litigated a case involving IP, she believes they would likely hold up in court because they pertain to property.
In 2024, for example, Kat and Mike Stickler made headlines in the U.S. after lawyers struggled to divvy up their US$4-million social-media empire, MikeAndKat.
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Items with sentimental or monetary value – heirlooms, art or furniture – can and often should be included in a pre-nup, Mr. Katsionis said.
“I’ve got a lot of clients who have the art, the high-end jewellery, for example, high-end purses, high-end watches … wine collections that are six-digit items.”
If you bring in a piece of art into the marriage, for example, it may be considered your original property, said Mr. Katsionis. But if its value increased by a million dollars during the relationship, the law would typically require that increase in value to be split. The same goes for a house.
If you don’t want that to be the case, exclusions should be clearly stipulated in the agreement, Ms. Townsend said.
It’s also important to account for and add clauses for future gifts or inheritances, if these are known.
Arguments often come up with parents who contributed towards the matrimonial home. “[They’re] saying that the money was a loan and they want to be paid back, and the other [is] saying no, it was a gift,” Ms. Townsend said.
In cases involving a family cottage, a spouse may only own a portion alongside their siblings, and that interest needs to be clearly identified, too. The same goes for family businesses.
At the end of the day, if a pre-nup is deemed significantly unfair or convoluted at the time of divorce, courts can override certain elements.
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The Bradley v. Callahan case, which culminated in B.C. this spring, serves as one example.
During a 22-year marriage, the husband’s assets had grown to $85-million as of the time of separation, and to $127-million as of the most recent valuation during divorce proceedings, documents show.
“At trial, the judge did not disturb the marriage agreement and instead gave the wife $8.6-million in lump-sum spousal support,” said Trudy Hopman of YLaw in Vancouver. But the B.C. Court of Appeal disagreed, reapportioning $29-million from the value of the husband’s assets after deeming the agreement unfair.
Despite the importance of a pre-nup document, lawyers see everything from ChatGPT-generated files to foreign templates that don’t work in Canada.
A pre-nup also won’t be upheld if a spouse fails to disclose assets, said Barry Nussbaum, senior lawyer at Nussbaum Family Law.
Another major pitfall is signing a pre-nup shortly before the wedding. “If something was to go wrong, one of the parties could say they were entered into it under duress,” said Mr. Klass.
It’s also important to remember that courts won’t uphold clauses pertaining to unborn children and their parenting, said Abby Pang, principal and founder of Illuma Law Corporation.
“Marriage is not only a union of love, it’s also a union of finances,” she said, adding that if you don’t like the default rules, you need to put thought into your own.