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Prenuptial Agreements in Nova Scotia

Avatar By: Daniela Sanchez July 20, 2023 no comments

Prenuptial Agreements in Nova Scotia

A prenuptial agreement in Nova Scotia, also known as “prenup”, is a written legal contract between two people who are planning to marry. Because it’s important to have a legally binding contract to adequately protect you, you should have a lawyer draw up the prenuptial agreement. Contact a Halifax family lawyer from Kimball Law to ensure that your prenup reflects your interests.

How Does a Prenuptial Agreement in Nova Scotia Work?

In Nova Scotia, the purpose of a prenuptial agreement is to protect the assets and income of one or both of the spouses from a claim by the other in the event of separation.

People who want to protect their existing assets, anticipated inheritances, or incomes and who plan to live together but do not plan to marry, can still have a Nova Scotia family lawyer prepare the same type of document or contract, which is commonly referred to as a cohabitation agreement.

Some people want a contract prepared after they have married. This agreement is typically referred to as a marriage contract and has the same effect as a prenuptial agreement.

A family lawyer in Nova Scotia will know the laws dealing with financial and property matters and can prepare a legally binding agreement to protect certain assets or income from a claim by the other spouse. Not only can a lawyer review with you specifically what you want protected but can address matters and make suggestions you may not have thought about.

How Long Does a Prenup Last?

If a prenup has been properly written and signed and both parties have had independent legal advice (by which is meant both parties speak to a different lawyer) then your prenuptial agreement should be legally binding.

In Nova Scotia, a prenuptial agreement survives the death of the first spouse. For example: if one spouse dies, the surviving spouse cannot legally claim more than what is set out in the prenuptial agreement (or marriage contract/cohabitation agreement).

If spouses prepare wills after the date the prenup was signed, giving the surviving spouse more than what the prenup provides (and are hopefully happily married at the time to death!) then the will would govern.

Can a Prenup be Deemed Invalid?

There are instances, however, when a Nova Scotia prenuptial agreement can be deemed by a court to be invalid. Some instances where this can occur are:

  1. If one party is unwilling to disclose their assets at the time the agreement is signed.
    • A court could find that party to be dishonest and invalidate the executed contract.
  2. Agreement coerced or signed under duress.
    • Both parties must sign willingly for the contract to be considered valid.
  3. Agreement signed with a mental capacity issue.
    • Both parties must have capacity to sign a contract and be mentally competent.
  4. Poor drafting.
    • If the contract is poorly drafted, wasn’t signed properly or witnessed, it may be invalid. This is an important reason to have an experienced Halifax family lawyer prepare your agreement.
  5. The prenuptial agreement is in unconscionable.
    • If the contract is unscrupulous or unjust so as to shock the conscience, it may be invalidated by a court.

Benefits of a Prenup

There are many benefits to having a prenuptial agreement prepared before you marry (or a cohabitation agreement before you move in together). If you plan to marry and own significant assets and/or earn a significant income, you may want to protect those assets and your income, if that marriage fails.

Sometimes those assets were hard earned from a prior divorce in which case, you don’t want to fight for the same assets twice!

You may be expecting a sizable inheritance and want to protect that inheritance from a claim by your spouse should you separate. An inheritance typically comes from your family, who have made plans to benefit you, not your soon to be ex-spouse. A prenup is essential in protecting those assets.

You may earn a sizable income and want to ensure that if the marriage were to fail you won’t have to pay a large spousal support payment for an indefinite period of time. A prenup drawn up by your lawyer can protect you from paying a large support payment for a long time.

Not having a prenup drawn up by a family law lawyer can leave your previously acquired assets and/or handsome income exposed to a potential future claim if your marriage doesn’t work out. On the other hand, if the marriage does indeed work out, the two of you will enjoy the fruits of those assets and that income well into your dotage.

Cohabitation Agreements vs. the Prenuptial Agreement in Nova Scotia

Some people live together in a common-law relationship and later decide to marry. If you have had a cohabitation agreement prepared by a lawyer, it can be drafted to survive a marriage. In other words, your cohabitation agreement will effectively become a prenuptial contract.

Regardless of whether you have a cohabitation agreement, a prenuptial agreement or marriage contract the only really distinctive difference is what type of relationship you are in when you have the agreement prepared. For instance, if you are engaged and you are planning to get married then a prenuptial agreement signed before the wedding, would be the route to take.

Likewise, if you are already married and one of you has come into an inheritance and you want to protect that inheritance from being claimed as a matrimonial asset then the married couple can sign a marriage contract, wherein that inheritance is protected. If, on the other hand, you and your partner are planning on moving in together and living common-law, a cohabitation agreement would be the type of agreement that is right for you.

In all three instances it is important to note that the name of the document is different, however, the purpose is the same and that is to protect your assets and/or income from a claim of a division of assets or spousal support in the event of a failed marriage.

You can find information regarding marriage contracts in the Matrimonial Property Act of Nova Scotia and on the Nova Scotia Family Law website.

Contact an Experienced Halifax Family Lawyer

Understanding and establishing a prenuptial agreement is crucial to safeguard your future interest and assets. At Kimball Law, we provide meticulous, thoughtful counsel to help you navigate this important process. Don’t leave your future to chance. Contact us today to book an appointment with our family lawyers.

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