• Property Division: This is usually the heart of a prenup. Ontario law says married spouses share the increase in value of their property during marriage (equalization). A prenup can vary or exclude the equalization regime. For instance, it might say each spouse will keep all property in their own name, with no equalization payment either way (complete separation of property). Or it might exclude specific assets from the calculation (e.g., “Wife’s rental condo and its increase in value will not be considered matrimonial property and will not be shared.”). Some choose to only tweak the law slightly: e.g., allow equalization but ensure the matrimonial home’s pre-marriage value is excluded, or cap the equalization amount. Essentially, except for a few restrictions, you can agree on any property division you want. The only restriction: you cannot make a term that “in the marriage, one spouse won’t have a right to live in the matrimonial home”– by law, during marriage, both have equal right to possession. But you can decide who keeps the home or how it’s handled on separation. Also, you can’t contract about future child-related property rights (like you can’t decide in a prenup how to divide the child’s RESP if you separate – that would be resolved later based on contributions etc., though you could set a plan).
• Spousal Support: The agreement can state whether either spouse will be entitled to support and if so, how much and for how long, or it can waive support rights altogether. As mentioned, a complete waiver is allowed but subject to later review if circumstances at separation make it unconscionable. Often, prenups for young couples simply waive support since both plan to work. Or if one spouse intends to be a homemaker, they may not waive but rather specify a formula or lump sum – maybe something like a sliding scale depending on years of marriage. Clarity here can prevent court battles.
• Estate Rights: Married spouses have certain automatic rights on death (they can elect equalization instead of what a will gives, and they get a preferential share if no will, etc.). A prenup can include a mutual waiver of estate rights, basically each agreeing not to claim against the other’s estate beyond what’s provided in the will. Often second marriages have this to protect kids from first marriage. It can also obligate each to maintain a will reflecting the agreement’s terms (though wills can be changed, the agreement at least morally binds them, and the estate waiver stops them from taking more).
• Day-to-Day Finances: Some prenups set out expectations like separate or joint bank accounts, who pays what, etc., though these are more of a domestic understanding than a legally enforced term.
• Sunset Clause (Optional): Occasionally, prenups have a “sunset clause” – meaning the agreement (or parts of it) expire after a certain number of years or after a life event (like birth of a child). For example, you might say if the marriage lasts 15 years, the property division waiver no longer applies, recognizing that after a long time it might be fairer to share. This can address concerns that an agreement could be too harsh after a very long marriage that wasn’t anticipated. Not all prenups have this, but it can be a negotiating tool to appease a hesitant spouse.

Child Custody/Support: It’s generally not permissible to decide child custody or child support in a prenup. Any such clause would not bind a court because a child’s best interests at the time of separation govern and child support is the child’s right (you can’t bargain it away). At most, you can include that you’ll attempt mediation if issues, or perhaps philosophical agreements about raising kids (not enforceable though). If parties already have kids from prior relationships, sometimes a prenup clarifies that the new spouse won’t have financial responsibility for the other’s kids, etc., but again, that’s more for clarity between them; legally a step-parent could be liable for child support if they stand in loco parentis, prenup or not – though a prenup might deter a court if the agreement proves an intention of finances separate. It’s grey there. But in general, don’t rely on a prenup to dictate anything about children’s care or support.

Same as any marriage contract: writing, signed by both parties, witnessed. And again, full financial disclosure and independent legal advice are critical for enforceability. If one spouse hides assets or debts and the prenup is based on incomplete info, a court can later void it. Each should attach a schedule listing their assets/liabilities at signing – this not only evidences disclosure but also is useful if needed to apply the agreement later.

It’s best to finalize a prenup well in advance of the wedding. If it’s presented too close (like on the eve of the wedding), the pressured timing could be grounds to challenge it (duress). Also, no one wants to be reading legal docs last minute. Many suggest at least 2-3 months before the wedding to have it signed.

Courts generally uphold marriage contracts. The FLA allows setting them aside if a party didn’t disclose significant assets or if one didn’t understand it or there was duress, or if the agreement is “unconscionable” at the time of signing. Unconscionability is a high bar – basically if the process was very unfair or the result would be extremely unfair. Simply favoring one side isn’t enough if that’s what was knowingly agreed. For example, if a young bride with no job signs a prenup giving her nothing if the marriage ends, and she didn’t have a lawyer and was pressured by the wealthy groom’s family, a court might toss it. But if she had a lawyer who explained it, and she still signed, believing the marriage will last, a court might uphold it even if the outcome is she gets no share. However, especially with spousal support waivers, courts have sometimes intervened, particularly if enforcing it would leave a spouse in a dire situation. Property terms are more strictly enforced as per contract.

If the couple already had a cohabitation agreement (say they lived together first), the prenup can essentially carry over or affirm that agreement.Often cohab agreements include a clause: “If we marry, this agreement shall continue as our marriage contract.” That avoids re-negotiating. One might update it though at marriage to include any new terms or address changes.

A prenup can’t contain provisions that are illegal or against public policy. For example, you cannot have a clause about non-financial matters like “if spouse commits adultery they pay $100k” – courts have held fault-based penalties in prenups are not enforceable (family law in Canada is no-fault, so such clauses are frowned upon). Also, anything promoting divorce (like a big incentive payment if you divorce) may be void.

A prenup can protect personal or family wealth, reduce uncertainty (especially important for entrepreneurs or those with significant assets), and frankly can strengthen a relationship by forcing couples to discuss finances openly before marriage. It’s often said negotiating a prenup is a test of communication. Each learns about the other’s values around money. While it may be awkward, many find peace of mind after it’s done – the wealthy spouse knows they won’t be taken for half of everything if it fails, and the other spouse might gain clarity on what they’ll get or that they’re not marrying for money.

Some argue prenups anticipate failure and can be unromantic. But realistically, with high divorce rates, it’s a prudent planning step, like insurance. As long as both approach it fairly, it need not cause strife. Also, a prenup must not be unconscionable; if it is too one-sided, it might not hold up, so both sides’ needs should be considered (e.g., maybe if one sacrifices career to raise kids, the agreement could still grant some support or share of property for fairness).

A prenuptial agreement is a powerful tool for couples who want to define their own financial terms of marriage. It carries legal weight, often stronger than the default statutes, as long as it’s properly executed. At Badesha Law, we assist in drafting comprehensive prenups (marriage contracts) that protect our client’s interests while striving for fairness, to minimize future challenges. We ensure all assets are disclosed and both parties are advised of what they are signing. The goal is that the contract will stand up if ever needed, and ideally, serve as a safety net that never has to be used because the marriage thrives. But having that safety net can be worth its weight in gold – or at least in legal fees saved later. In Ontario, as one judge famously said, “a deal is a deal” with domestic contracts – so make sure the deal you sign before saying “I do” is one you can live with.