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  • Marital Agreement

    Hello,
    I got divorced 3 years ago and stayed in the matrimonial home after paying my ex-husband off. I have quite large equity in the house right now. I got re-married exactly a year ago and we didn't sign any prenuptial agreement. My present husband agreed to sign a marital agreement, so I can protect my assets, especially the matrimonial property.
    I want to make sure that the agreement we sign now will be valid under Family Law Act. In the agreement I want to enter a clause stipulating that my husband will be entitled to half of the depreciation value only after 5 years of marriage, and no earlier than that. In case that our marriage falls apart prior to 5 years, he will be entitled to a specific amount of money. These are the terms I want to enter in the agreement. My question is: can this agreement be signed any time during the marriage and can one 'play' with different clauses in the agreement; in my case a specific clause what my husband would be entitled to should we separate/get divorced. It's not like we are planning on divorcing, but I just want to be able to protect my assets.
    Thanks,
    JO.

  • #2
    jojo,

    Yes you can make your own clauses in your agreement. In the event of a separation or divorce on the support of each other and in regards to assests.

    lv

    Comment


    • #3
      I'd also add that in a case like this it's really important that both of you have lawyer and get proper independent legal advice.

      This is because the law is that if such an agreement were signed before you got married, neither of you is giving up any rights, as you only get the rights when the marriage occurs. However, now that you are married, at least one of you would be giving up some rights.

      So, the court looks at prenuptial agreements that are signed after a marriage occurs particularly closely. While theoretically independent legal advice isn't necessary for a prenuptial agreement, in a case where you're signing it after a marriage, as a practical matter I think most courts would not enforce the agreement unless there was independent legal advice.
      Ottawa Divorce

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      • #4
        Marital Agreement

        Thank you for your replies.
        Don't get me wrong, I don't want to leave my husband 'empty-handed', but he brought literally '0' assets into the marriage, while I own the house, car, etc. However, since we've been married he has been contributing (half) to the mortgage and all other payments. I understand Jeff's concerns and advice re independent legal advice. But in case we can't afford such, can this be replaced with a clear stipulation/statement by my husband in the agreement, that he understands that by signing the agreement he is giving up his right to his share (50% - in case of absence of the agreement) of the matrimonial property?
        JoJo

        Comment


        • #5
          Jojo, it would help, but it may not be enough. Judges are pretty sceptical about marriage contracts entered into after marriage. I like to help people do things on their own without the help of lawyers where possible, but in your case I do think that the independent legal advice is essential to ensure that the marriage contract doesn't get invalidated.

          I know that independent legal advice isn't cheap, but it's a lot cheaper than losing half the equity in your home! If you look at it that way, it's a bargain.
          Ottawa Divorce

          Comment


          • #6
            Thanks Jeff. I'm sure you are 100% right. Too bad you are not here in Toronto, because I would use your services)) However, matter is more complicated, since my husband's English is still quite poor (we are both Polish), he immigrated to Canada 1,5 ago, after serving twice in Iraq in International Forces, so I most likely would have to get a Polish lawyer who could explain/translate the whole agreement to my hubby. One more thing, my husband has a minor child from his previous marriage. The child lives in Poland with his mother. Does the child has to be included somehow in the agreement, meaning - would the child have rights to the property without addressing it somehow in the agreement? I'm probably going way too far, but one can never be to careful. I completed 3 years of Law School back in Poland, it was around 20 years ago?, and of course Polish law doesn't have common law orgins, so I remember little things here and there, which sometimes come to mind - taking a kid into consideration is just one of them
            Jojo

            Comment


            • #7
              jojo,

              you mentioned;

              The child lives in Poland with his mother. Does the child has to be included somehow in the agreement, meaning - would the child have rights to the property without addressing it somehow in the agreement? I'm probably going way too far, but one can never be to careful. I completed 3 years of Law School back in Poland, it was around 20 years ago?, and of course Polish law doesn't have common law orgins, so I remember little things here and there, which sometimes come to mind - taking a kid into consideration is just one of them


              Yes indeed, include the child in the agreement as Ontario Law would apply.

              lv

              Comment


              • #8
                Child from the previous marriage - marital agreement

                Thanks! How would I do that? Does the agreement should read that neither my husband nor his minor child from the previous marriage would have any intrest in the property? Can you give me a sample of a logical/legally sounding clause? Can something like this be decided for a minor child? I guess I won't be able to bite it without a lawyer... I have a 'ready' marital agreement that I purchased through Jeff's site; I'm just wondering how should I go about making changes to it so it stays legally binding...
                Jojo

                Comment

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