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Many young Canadians are eyeing pre-nuptial agreements to protect their finances, but do they have a role to play in parenting?
Sixty-two per cent of those polled last month by H&R Block Canada said they would be happy to sign a pre-nup if their partner was wealthier or had a much higher income. (The word is still out on whether billionaire Taylor Swift and her less-wealthy fiancé Travis Kelce will get one.)
Given the popularity of pre-nups among young Canadians, some might wonder whether the contract can also help outline custody wishes and other considerations about children in the event of a split.
The short answer is no. A pre-nup is focused on finances – what happens to assets or debts you bring into the marriage, how future assets will be divided, and wishes around spousal support.
“Pre-nups and co-habitation agreements which include sections on child support or parenting arrangements are not enforceable unless you are already separated or thinking about separating,” said Amanda Baron, a lawyer and the co-founder of Revelstoke, B.C.-based online pre-nup provider Jointly. Parenting arrangements must be based on what is in the best interests of the children at the time of separation, she added.
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The exception to this, according to Ms. Baron, is when there are children from a previous relationship. In that case, you can include provisions in a pre-nup about how your new partner will care for your children or waive any future requirements for paying child support to those children, with the caveat that a judge may override any decision if they don’t believe it’s in the best interest of the child. For example, a judge could order a step-parent to pay child support after a separation, despite stating otherwise in a pre-nup.
While a pre-nup can’t include legally-binding custody and child-support terms, it can account for the financial consequences of one person taking a break from their career to care for children, such as a provision that the caregiving spouse will receive spousal support for a period of time if the relationship ends.
Ms. Baron says pre-nups can also include “aspirational language” and wishes – so parents might state that they intend to co-parent co-operatively in the future or that they will prioritize mediation if they go through a split. These can be a reminder of shared values and set a tone of co-operation, Ms. Baron says, even if they aren’t legally binding.
“One of the best things that pre-nups and co-habitation agreements do for parents is reduce the level of conflict if a separation happens,” she said. “By setting out how property, debt and financial responsibilities will be handled if the relationship ends, these agreements give parents a roadmap. Instead of spending months or years fighting in court, families can move more quickly into a new routine.”
Whether you use an online tool such as Jointly, which charges $429 to create a pre-nup for both people, or you visit a lawyer, a pre-nup protects the assets you’re bringing into the marriage and allows you to state how you would want to navigate a split and hopefully reduce contention for any children.
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One thing to keep in mind is that you need to start this process early, something I learned the hard way. I visited a family lawyer the week before our 2018 wedding and found out that not only did my future husband and I both need our own legal representation to create a pre-nup but we also shouldn’t have tried to do it so close to the wedding, since a judge may determine that it was created under duress.
A co-habitation agreement is similar to a pre-nup but for unmarried couples. These can be especially important, since in many provinces, such as Ontario, common law spouses may not have the same rights as legal spouses.
Or if, like me, you’re already married and it’s too late for a pre-nup, you can still have a conversation with your partner about how you would want to co-parent to ensure your child’s well-being in the event of a split.
Pre-nups can be a touchy subject for couples, since it’s asking them to contemplate a split before they’ve even gotten married. But as the child of divorced parents who had an extremely amicable split, I can assure you that your children will thank you later for reducing conflict at the time of a separation and that it’s better to pay for a pre-nup now vs. divorce court later.
Erin Bury is the co-founder and CEO of online estate planning platform Willful.co. She lives in rural Ontario with her husband and two young children.
