Prenuptial agreements, why more couples are getting them and what they cover

The stigma around prenuptial agreements is fading, and it should be. A prenup is a financial planning document. It defines what each person brings into the marriage, how things will be treated if the marriage ends, and what each party's expectations are around money. Having that conversation before you're married is, by most measures, healthier than having it during a divorce.

The couples who resist prenups most strongly are often the ones who need them most, couples with significant asset asymmetry, business ownership, or children from previous relationships. Those situations create exactly the kind of complexity that benefits from being addressed in writing before emotions are running in the opposite direction.

Who should consider a prenuptial agreement

A prenup is worth considering seriously if any of these apply:

• You're entering the marriage with significant assets, a property, an investment portfolio, a business, or an inheritance.
• You own all or part of a business, or expect to during the marriage. Business valuation in divorce is truly complex and expensive. A prenup that pre-defines how business interests will be treated removes a major source of litigation.
• You have children from a previous relationship. A prenup can specify which assets are intended for those children and protect them from being divided in a future divorce.
• There's a significant income disparity. Not because spousal support should be avoided, but because both parties benefit from knowing what the expectations are.
• You expect to receive a significant inheritance. Without a prenup, inherited property can become shared property in some circumstances, particularly if it's mixed with marital assets.
• You've been through a difficult divorce before and want more certainty this time.

This is not an exhaustive list. The right question is: are there financial realities in your situation that would be much easier to address now than later? If the answer is yes, consider a prenup.

What a prenup covers

Prenuptial agreements are fundamentally agreements about property. They define:

• What stays separate. Assets each person brings into the marriage can be defined as remaining separate property, not subject to division if the marriage ends. This includes property owned before marriage, inheritances, and gifts received by one spouse.
• What becomes shared. You can specify which assets, if any, will be treated as marital property even if they're currently held by one party. Some couples choose to share the matrimonial home regardless of who bought it; others don't.
• Spousal support. A prenup can address whether support will be paid, in what amount, and for how long. It can also waive support entirely. Courts scrutinise support waivers carefully, particularly if the waiver leaves one spouse in an extremely difficult position, but they are generally enforceable if both parties had proper advice at the time.
• What happens to the family home. Whether one party has the right to buy out the other, whether the home must be sold, and how the proceeds are divided.
• Debt. Pre-existing debt can be defined as each party's sole responsibility.

What a prenup cannot do

This is equally important. A prenuptial agreement cannot:

• Set child support or custody terms. Courts always have jurisdiction over children, and any terms in a prenup purporting to fix future child support or custody arrangements will not be enforced. The best interests of the children at the time of separation is the standard, and that can't be determined in advance.
• Include terms that are grossly unconscionable. An agreement that would leave one spouse destitute, particularly after a long marriage where one party gave up a career, may be set aside in whole or in part by a court.
• Contain non-financial terms. You cannot enforce lifestyle clauses (who does the housework, where you spend holidays, how often you have sex). These are not legally binding.
• Be based on incomplete disclosure. If one party hid significant assets when the agreement was negotiated, the agreement can be challenged on that basis.

Enforceability requirements

A prenup that isn't enforceable is just a piece of paper. The requirements vary somewhat by jurisdiction, but the core elements are consistent:

In Canada

Domestic contracts (including marriage contracts, which is what prenups are called in Ontario) are governed by provincial law. In Ontario, the relevant provisions are in the Family Law Act, Part IV. For a marriage contract to be enforceable:

• It must be in writing, signed by both parties, and witnessed.
• Both parties must have made full financial disclosure.
• Both parties must have received independent legal advice, their own lawyer, not the same one.
• Neither party can have signed under duress, through misrepresentation, or without understanding the nature or consequences of the contract.

Courts can set aside a domestic contract or any part of it if it would be unconscionable for a court to uphold it. This is a high bar, it's not set aside just because the outcome is unequal.

In the US

Most states have adopted the Uniform Premarital Agreement Act (UPAA) or the updated Uniform Premarital and Marital Agreements Act (UPMAA). The requirements are similar to Canada's: full financial disclosure, voluntary execution, both parties having had an opportunity to review with counsel, and no unconscionable terms.

State law varies, and a few states have stricter requirements. California requires that the agreement be in writing, that each party had at least seven days to review it with an attorney before signing, and that the attorney for each party certify in writing that they explained the agreement. Make sure you're working with an attorney familiar with your state's specific requirements.

Timing matters more than people realize

Agreements signed very close to the wedding date are much more vulnerable to challenge. The argument is that one party was under social and emotional pressure not to rock the boat right before the wedding, which can be argued to constitute duress, or at minimum calls into question whether the signing was truly voluntary.

The earlier the better. Ideally, start the conversation months before the wedding, negotiate in full, sign well in advance, and treat the agreement as separate from the wedding planning entirely. Springing a prenup on a partner a week before the ceremony is a good way to ensure it won't hold up later.

The conversation itself

Many couples worry that raising a prenup signals distrust. The opposite framing is more accurate: a prenup signals financial maturity. You're acknowledging that you're two adults with financial histories, possibly with children or family obligations, who are choosing to be clear about what you each bring and what you each expect. That's the same conversation a good financial planner would have with you anyway, you're just having it in a form that has legal teeth.

FairWell's prenup builder walks you through the key decisions before you meet with a lawyer, which makes the actual legal work faster, cheaper, and more aligned with what you both actually want. The agreement is then reviewed and finalised by a lawyer for each party.