Ask the Law Expert – Rocky Hornung

law expert

Ask the Law Expert – Rocky Hornung

I have two children from a previous marriage and have been seeing someone for over 3 years now.  I want to get married.  He says that he has no objection to marriage but that he wants me to me to sign a prenuptial agreement.  Is a Prenuptial Agreement (PA) a good idea?

Whether a prenuptial agreement is a good idea depends upon its terms and, of course, whether or not it ever needs to be relied upon in the first place.  Obviously no couple ever gets married with plans to eventually divorce.  However, the law allows a couple (under the provisions of the Matrimonial Property Act of Alberta) to essentially create their own rules that will govern the separation of their property in the event of a marriage breakdown.  The important qualifier to this is that both parties must receive independent legal advice in order for the PA to become legally binding.

It is astounding to me how many clients I will get in a year that will walk into my office with a draft PA that their spouse has drafted (through their lawyer)….. and they seem to blindly assume that they know exactly what the ramifications are of signing it.  Frankly, most people have no idea just how devastating a PA can be if one just blindly signs one without any serious scrutiny of the potential consequences that can result from a marriage breakdown. For example, the Matrimonial Property Act gives you a right to share in all of the assets and debts that are acquired during the years of the marriage. Also, it gives you the right to share in one half of the growth of any assets that your husband at the time of your marriage up until your divorce. Thus, the most common thing to see in a PA is a clause that has the parties waiving any interest in the assets acquired by the other spouse during the marriage… in addition to waiving any interest in the growth on any assets existing before or at the time of the marriage.

If, in your situation, you give up your job and move into a nice new home (with your two kids obviously moving in as well) that is in your spouse’s name, you have to be careful not to sign away any interest that you may come to have with respect to the home under the terms of the Matrimonial Property Act.  If your future husband tells you that he would never leave you destitute and you trust him… so be it.  But I make the observation that one of the first things to leave a failed marriage is trust.  Remember… the whole point of a PA (in my respectful opinion) is to draft a set of equitable and fair rules that are tailor-made for a particular couple’s financial and property circumstances in the event that trust and understanding are no longer possible.) To put it another way, if a spouse raises the issue of a PA, the ensuing discussion should not be avoided solely on the grounds that it is a question of trust; rather, the consideration should focus on what will happen if the trust is lost?

We have all heard the expression “Hell hath no fury like a (wo)man scorned.”  ‘Trust’ me when I tell you that it applies to both genders in some divorces.  To enter into any marriage on the assumption that it may never breakdown is a choice that all of us are entitled to make.  And to the credit of many people who have gone through a divorce, a separation does not have to be filled with high conflict.  The only thing that I wish to emphasize is that many couples will avoid discussing what will happen in the event of a relationship or marriage breakdown in terms of their property (not to mention such things as spousal and child support) because they are afraid of offending the other party.  This is perfectly understandable.  But it is my observation that many people are not aware of how the application of the Matrimonial Property Act could impact their property in the event of a separation or divorce.

The most important thing is to simply become informed.  Accordingly, if your fiancé wants to discuss the terms of a PA with you I would advise you to do the following:

Make no promises or guarantees with respect to what you are prepared to agree to before you consult a lawyer.  They are many nuances in a separation that need to be explored.  In my experience most clients will come into my office with a generic PA that was drafted by their spouses lawyer that often has very little consideration in terms of both property and spousal support.  (What is even more incredible are the clients I have come in one week before their wedding and expect it to be a formality! It is, in my view, a form of emotional coercion when one spouse sends his/her spouse to a lawyer expecting a PA to be executed with a wedding date merely days or weeks away.  And if a lawyer believes there to be coercion of any kind, we cannot swear that our client executed the PA free from undue influence.  Thus, we may refuse to sign the certificate of independent legal advice that makes the PA legally binding.

If your spouse wants to address the issue of a PA, the best thing to do is to both obtain legal counsel and give yourselves enough time (and of course your respective lawyers enough time) to approach the property and support issues in a timely, productive, efficient and informative manner.   PA’s are not necessary for every couple, but if the subject, once raised, is avoided, it may reflect a naiveté that could come back to haunt one or both parties in the future when ‘trust’ is lost.

Because of the complexity surrounding the issue of PA’s I would advise that any couple considering obtaining one consult with their respective family law lawyer.