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Getting Your Affairs in Order - Marriage Contracts

The phenomenon of second marriages has become commonplace in modern society. 

It is not uncommon for a second marriage to take place somewhat later in the life, and at a time when the children of both partners are independent adults.  It is not uncommon for those children, having expectations as to their inheritances, or concerns as to the financial security of their parents, to be apprehensive that mom or dad may have made an unwise choice of a new partner, and that the relationship may fail.  In cases where one of the two partners is significantly younger than the other, the concerns of the children of the older party may be heightened. 

In these circumstances there is every potential for tension or conflict within and between families.  While these consequences are sometimes unavoidable, there are circumstances in which they can be avoided, or at least minimized

Particularly, although not only in cases where the new partners are of significantly different financial means, it is well for the parties to consider entering into a marriage contract.  Preferably, the contract is entered into prior to marriage, but the contract can be entered into during the course of the marriage as well.  Marriage contracts are recognized as valid agreements under the Ontario Family Law Act.  By a marriage contract, the parties may specify their rights and obligations towards each other during the marriage, and on separation, divorce or death.  The contract may deal with ownership in or division of property, support obligations or any other matter arising in the event of a breakdown of the relationship. 

The Family Law Act requires certain formalities for the validity of a marriage contract.  It is important in terms of the enforceability of the contract that each party have had independent legal advice, and that each makes full written disclosure of his and her assets, liabilities and income to the other. 

To many, it will seem that a marriage contract is not in keeping with the trust and affection which is typically inherent in a new relationship.  To be sure, there can be some awkwardness in the process of concluding a marriage contract.  Those considerations are generally greatly outweighed by the value of the degree of certainty the contract produces for each party, particularly in planning for the disposition of each of the partners individual estates, and, as is indicated above, a marriage contract can have the salutary emotional benefit of alleviating concerns and possible tensions between the family members of each of the parties.

For more information about marriage contracts, contact Larry Enfield, a partner with Enfield Wood LLP, who  has practised estate planning administration since 1977. 

To learn more about Larry Enfield and Enfieldwood LLP, visit the website http://www.enfieldwood.com/

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