| Prenup | Prenuptial Agreement Forms: Tips to | | | | interpretation to fix things. Remember: mistakes |
| avoid having them challenged. | | | | will not be looked upon favourably – |
| Please note that the information provided herein is | | | | particularly against the party who drafted the final |
| not legal advice and is provided for informational | | | | Agreement! |
| and educational purposes only. If you need legal | | | | Tip #4: Get Independent Legal Advice |
| advice with respect to getting a prenuptial | | | | To avoid having a party later claim that they |
| agreement, you should seek professional | | | | didn't understand or appreciate the nature or |
| assistance (e.g. make a post on Dynamic Lawers). | | | | consequences of the Agreement is to make sure |
| We have Toronto, Ottawa, Hamilton, Brampton, | | | | that they receive independent legal advice. This |
| Mississauga and other Ontario lawyers registered | | | | also helps avoid arguments that they were |
| to help you. We will soon be offering Prenuptial | | | | pressured or threatened into signing. One "no-no" |
| Agreements in our Legal Forms + Video Guides | | | | that can be easily avoided is referring the other |
| section. You can contact me directly if you need | | | | party to a lawyer. There are lots of lawyers out |
| a lawyer. | | | | there who can review the Agreement, advise the |
| This is the third of a series of article posts I'm | | | | other party, and render a certificate of |
| writing about prenups or prenuptial agreements | | | | independent legal advice; leave it to the other |
| for Ontario. In the first article, I discussed what | | | | party to do this for themselves. Things can look |
| they are, when are they used, and what is | | | | bad for you if you arrange to do it for them! |
| required for them to be valid and enforceable. In | | | | Note: Independent legal advice is NOT a formal |
| this article, I'll discuss how they can be | | | | requirement under the Family Law Act (or under |
| challenged. In the second article, I reviewed Loy | | | | the common law) to have a valid and enforceable |
| v. Loy – a Ontario Superior Court of Justice | | | | Prenuptial Agreement. That said, its presence |
| case which reviewed the jurisprudence concerning | | | | helps to eliminate (except in the most exceptional |
| how prenuptial agreements (and other domestic | | | | circumstances) the ability for one party to have a |
| contracts) can be challenged. In this article, I'm | | | | court set aside the Prenuptial Agreement on the |
| going to mention some tips that will help mitigate | | | | basis that it did not understand "the nature or |
| against future challenges to prenups. | | | | consequences of the [Prenuptial Agreement]" or |
| Tip #1: Provide Adequate Disclosure | | | | to set it aside "otherwise in accordance with the |
| Adequate disclosure depends on the | | | | law of contract". Basically, having an independent |
| circumstances. Clearly, the assets, liabilities, | | | | lawyer gives the impression that the lawyer's |
| income, etc. listed in Schedule "A" to the Prenuptial | | | | knowledge and understanding is transferred to the |
| Agreement is a great start. But what about | | | | party (because of the solicitor-client relationship |
| providing values? If it's possible to put down | | | | and because it makes common sense). If it |
| approximate values of the most substantial items | | | | didn't mean that, then the idea of having |
| (e.g. assets, liabilities, etc.), then that would be a | | | | independent legal advice would be meaningless. |
| good idea. Sometimes, the person making | | | | One other thing: it is best not to have a party or |
| disclosure can only guess – perhaps based on | | | | their lawyer recommend a lawyer for the |
| their knowledge. | | | | purpose of obtaining independent legal advice. |
| Tip #2: Negotiate the Agreement | | | | Independent legal advice is NOT a formal |
| There will always be some issues that have to be | | | | requirement under theFamily Law Act (or under |
| negotiated, regardless of how significant or trivial | | | | the common law) to have a valid and enforceable |
| they may appear to some people. The fact of | | | | Prenuptial Agreement. That said, its presence |
| the matter is that evidence of negotiation (i.e. that | | | | helps to eliminate (except in the most exceptional |
| a party reviewed and put forward their own | | | | circumstances) the ability for one party to have a |
| position – and perhaps even compromised to | | | | court set aside the Prenuptial Agreement on the |
| get a result) strengthens the view that the | | | | basis that it did not understand "the nature or |
| Agreement is valid and enforceable. Negotiating | | | | consequences of the [Prenuptial Agreement]" or |
| also means giving enough time for the parties to | | | | to set it aside "otherwise in accordance with the |
| review and revise the Agreement; rushing things | | | | law of contract". Basically, having an independent |
| before the period of Prenuptial begins could be | | | | lawyer gives the impression that the lawyer's |
| disastrous! | | | | knowledge and understanding is transferred to the |
| Tip #3: Draft Appropriately | | | | party (because of the solicitor-client relationship |
| The final agreement should reflect the negotiated | | | | and because it makes common sense). If it didn't |
| agreement between the parties. Clear and | | | | mean that, then the idea of having independent |
| simple language should be used. This will prevent | | | | legal advice would be meaningless. One other thing: |
| the other side from saying that they didn't | | | | it is best not to have a party or their lawyer |
| understand the terms of the agreement. It will | | | | recommend a lawyer for the purpose of obtaining |
| also help prevent a court from using its own | | | | independent legal advice. |