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help - do i need a prenup?

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Newbie
Mar 25, 2011
1 posts
vancouver

help - do i need a prenup?

I am 31 years old and about to get married. I own 50% equity in my home, but do not have many other assets. My fiancee has no assets, but will probably make a higher salary than me.

I heard that it doesn't matter who brings the home into the marriage - it is divided in half if you separate. But what happens if she does end up making significantly more than me? Do I @#$% myself over by getting a prenup to say that my contribution to the house upon marriage should get considered in any equalization payments upon separation?
18 replies
Deal Addict
Oct 14, 2004
1474 posts
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Toronto
gwan wrote:im sorry but if you're that worried about separation and her taking her half of your assets already... maybe...don't get married...

Do you get to tax time and say "wow, maybe I should have done X because it would have saved me $2k in tax"? Or do you begin planning part way through the year to ensure you get that $2k of tax back? This is the same thing...planning. If things don't go south, then you are in wedded bliss. If they do go south, then you know you are protected and it might save a pile in lawyers fees.

OP, is she bringing in any debts or other liabilities? If so, then it might make sense.
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Sep 26, 2007
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charliequacker wrote: I am 31 years old and about to get married. I own 50% equity in my home, but do not have many other assets. My fiancee has no assets, but will probably make a higher salary than me.

I heard that it doesn't matter who brings the home into the marriage - it is divided in half if you separate. But what happens if she does end up making significantly more than me? Do I @#$% myself over by getting a prenup to say that my contribution to the house upon marriage should get considered in any equalization payments upon separation?

first congrats
no expert on this but let me try to understand you correctly.

you're going to pay for the majority of the house so asset wise you currently have more than your fiancee.
however your fiancee will probably make more then you in the future.

and your question is does it make sense to sign a prenup, where that will protect you from losing your assets.

logically i guess that would depend on how long you guys are married. chances are if there is a divorce within the first 5 years you will lose more than your fiancee.
however in the long term, her higher salary will probably mean she will contribute more to the assets right?

imo since if your married for a long time chances are you're going to be happy with your fiancee and will in a sense contribute to the asset pool so it evens out.
but in the short period, if your not happy then you lose out.

so go for the prenup, it will offer you more protection than a condom.
"We don't have a soul... We are a soul. We have a body." ~C.S Lewis
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Jul 12, 2004
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I'm no lawyer, but I don't think a prenup will protect you in this situation.

This is for Ontario but I imagine BC is similar

"The family home is another exception to the general rules. The law says that when your marriage ends, the full value of the family home must be shared even if one of you owned the home before you were married, received it as a gift or inherited it."

http://www.attorneygeneral.jus.gov.on.c ... milyla.pdf page 30

If she ends up making significantly more than you, then upon dissolution of the marriage, any assets gained by either spouse during the marriage will be split 50-50. Depending on how much more she makes relative to you and the amount of equity you have in your home, it could be a very long time before things start to balance out since you are probably bringing considerably more assets to the relationship.

The best way to get around this is to do what GWAN said and don't get married.
If you must get married, then maybe you should sell your home prior to marriage and keep the equity as cash/stock/bonds since only the value of the home (and a few other exceptions) is divided equally between two separating spouses. You would probably be able to keep the cash as long as you could prove it was yours prior to the marriage. Any capital gains however you would likely have to share.

To be sure, definitely consult with a qualified lawyer before coming to any decision.
Newbie
Dec 15, 2010
27 posts
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Winnipeg
Hojo wrote: I'm no lawyer, but I don't think a prenup will protect you in this situation.

This is for Ontario but I imagine BC is similar

"The family home is another exception to the general rules. The law says that when your marriage ends, the full value of the family home must be shared even if one of you owned the home before you were married, received it as a gift or inherited it."

http://www.attorneygeneral.jus.gov.on.c ... milyla.pdf page 30

If she ends up making significantly more than you, then upon dissolution of the marriage, any assets gained by either spouse during the marriage will be split 50-50. Depending on how much more she makes relative to you and the amount of equity you have in your home, it could be a very long time before things start to balance out since you are probably bringing considerably more assets to the relationship.

The best way to get around this is to do what GWAN said and don't get married.
If you must get married, then maybe you should sell your home prior to marriage and keep the equity as cash/stock/bonds since only the value of the home (and a few other exceptions) is divided equally between two separating spouses. You would probably be able to keep the cash as long as you could prove it was yours prior to the marriage. Any capital gains however you would likely have to share.

To be sure, definitely consult with a qualified lawyer before coming to any decision.

I am also not a lawyer, but do keep in mind that many provinces assign many of the same rights to common-law couples as they do to married couples and the exemption mentioned by Hojo is no different. If you're living together, she may already have rights to the entire value of the home.
Sr. Member
Nov 22, 2006
712 posts
14 upvotes
Congrats. Now you get to deal with all the stuff that will drive you crazy, make you lose sleep, give you an ulcer, etc. This is one of those issues that you want to find out the answer, just to get it out if the way. In Ontario (you're in B.C., not sure of legal differences) What was your before the marriage stays yours. If you have 200K equity in your home, get married, split up shortly after and the value and equity of the home hasn't changed you keep your 200k equity, she doesn't get a 100 k payday. Now if the value and equity of the home increase over the duration of the marriage say to 300 K, (your initial 200K and the 100k split 50/50) . Inheritance stays separate too. Now where people get into trouble is when they take these segregated funds and put them into mixed assets. Such as buying a new house (now it's 50/50), topping up RRSPs and investments, buying cars, cottages, etc. Spend a hundred bucks talk to a lawyer in your province to confirm if what I am saying is true. If your only major asset is your house, it's probably not worth (cost and hassle wise) getting a pre-nup drawn up. You will sleep better after getting this issue out of the way so you can get back to the important things in life like arguing with your fiancée about chair covers or centre pieces and all of that fun wedding stuff.
Member
Feb 19, 2011
202 posts
21 upvotes
I am also no lawyer, but have had the discussion about pre-nups and the matrimonial home time and time again with a lawyer friend of mine.

In Canadian law, the matrimonial home is to be split 50/50 upon divorce and even if your pre-nup says that she will give you the whole house as it was yours at the start of the marriage, the law will supersede that part of the pre-nup. No way around it. If she had money now, you could ask her to contribute to the remaining mortgage the same amount as you have paid in, but it does not sound like she has any money right now. Alternatively, I wonder if you could take out a larger mortgage, on the majority of the home, before you marry, and then simply make payments 50/50 with your spouse from thereon out. However, you would be needlessly paying interest payments on your home in this case, just in case you were to divorce. Sounds a bit odd to me.

If your spouse does make more money than you, you would have alimony payments available to you upon a divorce.

Once again, as others have said, if you worry this much about divorce and protecting your asset, maybe marriage right now is not a good choice for you two. My husband and I have only been married for four years, but our incomes and assets and debts are virtually totally intertwined as we both work together to pay our mortgage, bills, debts, car payments, groceries, etc, etc, everything really, in order to pool our resources and budget to get the most out of our money. I can't imagine it any other way. Before we were married, virtually my whole paycheque every two weeks was going to pay off his student debt since that made the most sense for us as a couple. I didn't doubt my decision to make those payments to his debt, since I knew that it would benefit the both of us in the long run.

Good luck to you, but I wouldn't waste your time trying to protect the matrimonial home with a pre-nup, as it really doesn't work in Canadian law.
Member
Feb 19, 2011
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alvanson wrote: I am also not a lawyer, but do keep in mind that many provinces assign many of the same rights to common-law couples as they do to married couples and the exemption mentioned by Hojo is no different. If you're living together, she may already have rights to the entire value of the home.

:arrowu: this
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Dec 11, 2003
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charliequacker wrote: I am 31 years old and about to get married. I own 50% equity in my home, but do not have many other assets. My fiancee has no assets, but will probably make a higher salary than me.

I heard that it doesn't matter who brings the home into the marriage - it is divided in half if you separate. But what happens if she does end up making significantly more than me? Do I @#$% myself over by getting a prenup to say that my contribution to the house upon marriage should get considered in any equalization payments upon separation?

What everybody has said so far PLUS welcome to RFD. An interesting 1st post. :razz:
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Dec 26, 2009
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Alanaaaaa wrote: I am also no lawyer, but have had the discussion about pre-nups and the matrimonial home time and time again with a lawyer friend of mine.

In Canadian law, the matrimonial home is to be split 50/50 upon divorce and even if your pre-nup says that she will give you the whole house as it was yours at the start of the marriage, the law will supersede that part of the pre-nup. No way around it.

According to the link posted above, it sounds as though this can be split differently (at least in Ontario). See the quotes below:
The family home is another exception to the general rules. The law says that when your marriage ends, the full value of the family home must be shared even if one of you owned the home before you were married, received it as a gift or inherited it.
Unlike other types of property, you do not get to keep for yourself what the house was worth at the time of your marriage.
You and your spouse can agree to a different split. Or, in some circumstances, you can ask the court to divide things differently. The court can only divide property differently in very special situations and if a 50-50 split would be extremely unfair to one of you.
Q: My parents left me their house when they died. I have been living in it for the last two years with my boyfriend. We are planning to get married and raise a family here. If our marriage doesn’t work out, I don’t want to lose the house to him. In our marriage contract, can we say that the house is mine no matter what happens?

A: Yes. Your marriage contract can say that you own the house and that its value when you married, and any increase in its value during your marriage, will be yours. But, your spouse will have the same right as you have to stay in the family home if your marriage breaks down. You cannot put anything in your marriage contract to change this.
If your marriage ends, your spouse may be able to stay in the house until you can agree to, or the court decides on, other arrangements.
Am I reading this correctly?

I also noticed that Common-Law does not have this 50/50 family home clause (in Ontario) as was suggested:
Common law couples
Q: We are not married but we’ve been living together for 15 years. If we split up, do we have to share the value of our property?
36

A: Maybe. Only married couples have an automatic legal right to half the value of family property. You can ask your spouse to pay you back for your contribution to property that your spouse owns. If your spouse does not agree, you can go to court to make your claim. But the claim will be based on another area of law, not family law. Ask a lawyer for advice.
Sr. Member
Dec 17, 2006
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alvanson wrote: I am also not a lawyer, but do keep in mind that many provinces assign many of the same rights to common-law couples as they do to married couples and the exemption mentioned by Hojo is no different. If you're living together, she may already have rights to the entire value of the home.
Alanaaaaa wrote: :arrowu: this
http://www.attorneygeneral.jus.gov.on.c ... milyla.pdf

Property
Common law couples do not have the same rights as married couples to share the property they bought when they were living together. Usually, furniture, household belongings and other property belong to the person who bought them. Common law couples also do not have the right to divide between them the increase in value of the property they brought with them to the relationship.
If you have contributed to property your spouse owns, you may have a right to part of it. Unless your spouse agrees to pay you back through negotiation, mediation, collaborative law or arbitration, you may have to go to court to get back your contribution.


It's pretty clear. You two are wrong.
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Dec 15, 2010
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zombie999 wrote: It's pretty clear. You two are wrong.

Maybe in Ontario, but not in Manitoba. In Manitoba, common-law couples have the same property rights as married couples. It depends on the province and there are even some federal laws pertaining to common-law couples.

For example, federally, a common-law partner is entitled to half your CPP benefit in the event of a break-up.

However, the OP lives in BC. We should be looking at BC family law.
Banned
Feb 10, 2010
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Speaking of common law, when does that kick in?

Everything I've read on legal sites (and even asked lawyers in the past) is that its 3 years living together (1 if you have a child) unless you intentionally register sooner as common law.

Yet I still have lots of people who freak out on me and insist its like 6 months even when I can point to the actual paragraphs on the manitoba law site saying its 3 years.

It baffles me how much misinformation there is.


As far as I understand, and I went to a lawyer to ask when I was considering having my ex move in with me (thank god I didnt, lol):


My house is mine, the only thing my common law "wife" would be entitled to is the growth in equity during the time we are together.

The main way people get screwed over is if they let their partner pay a bunch of money towards the mortgage, pay for renovations, do the actual work for renovations, etc. Then they can claim they enhanced the value of the property and get money for it.
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Sep 13, 2005
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Alanaaaaa wrote: Once again, as others have said, if you worry this much about divorce and protecting your asset, maybe marriage right now is not a good choice for you two. My husband and I have only been married for four years, but our incomes and assets and debts are virtually totally intertwined as we both work together to pay our mortgage, bills, debts, car payments, groceries, etc, etc, everything really, in order to pool our resources and budget to get the most out of our money. I can't imagine it any other way. Before we were married, virtually my whole paycheque every two weeks was going to pay off his student debt since that made the most sense for us as a couple. I didn't doubt my decision to make those payments to his debt, since I knew that it would benefit the both of us in the long run.

You should take a look at the way other people do it and have a lot of success with it. Just because you use the one pot system doesn’t mean it’s the best and will suit everybody. I for one would never use the 1 pot system ever as I want a bit of personal flexibility. I’ve used the 2 pot system and it was ok but a bit of work and I’m not happy with how much time I spend adjusting things so we’re onto 3 pot system. So imagine that others make do with more than the 1 pot system you’re using.

OP, take a look at the couples finance thread and read through it. Many different people have posted how they handle their finances and it really doesn’t matter if you’re married or not as living together means shared expenses. Best to get all this out in the open before you’re married as the divorce will be messy and expensive.

As to your pre-nup question, others have already answered your question but to be safe go to talk to a family law lawyer and they can help you out more. Get a pre-nup if you want to be safe. Others may not like it but I find your worries are warranted as you’re going into the transaction with a significant chunk of cash/asset. One way (I think) to keep your house yours is to draft up pre-nup stating that she won’t get capital gains on the house and can’t make any financial claim to it. Just don’t live in that house and you can keep that house yours permanently. Getting rid of the matrimonial home classification for your house will solve a few issues as matrimonial homes got a lot of rules that go with them. Go buy another house, or go rent. If you want more advice I suggest you send Nikita a PM and ask her. She’s actually a lawyer and actually practice family law in ON for many years.
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Dec 15, 2010
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Winnipeg
will2009wpg wrote: Speaking of common law, when does that kick in?

Everything I've read on legal sites (and even asked lawyers in the past) is that its 3 years living together (1 if you have a child) unless you intentionally register sooner as common law.

Yet I still have lots of people who freak out on me and insist its like 6 months even when I can point to the actual paragraphs on the manitoba law site saying its 3 years.

It baffles me how much misinformation there is.


As far as I understand, and I went to a lawyer to ask when I was considering having my ex move in with me (thank god I didnt, lol):


My house is mine, the only thing my common law "wife" would be entitled to is the growth in equity during the time we are together.

The main way people get screwed over is if they let their partner pay a bunch of money towards the mortgage, pay for renovations, do the actual work for renovations, etc. Then they can claim they enhanced the value of the property and get money for it.

Again, I am not a laywer, but I just went through this with mine a little over half a year ago. I'll assume from your name and location that you're in Winnipeg too ;) My answers, of course, are only valid for Manitoba.

Anything federal, like CPP or doing your income taxes: 1 year.

Pensions, provincially (MB) or federally regulated: 1 year.

Most benefits (Blue Cross, GWL, Sun Life): 1 year.

Anything else (e.g. property rights): 3 years (1 if you have a child).
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Dec 11, 2005
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I think pre-nups are bogus. If you don't love the person enough to give them half your stuff, then you should not be marrying them in the first place.

Yes if/when you get divorced, you will feel differently. Guess what - completely irrelevant. You are not, or at least SHOULD NOT, be going into this marriage blind, you should know and love this person inside and out, such that if they needed it TODAY you would hand them over half, nay, ALL of your possessions. If something happens over the next 5 or 10 years that causes you to fall out of this love, it does not make all the previous years of love meaningless.

If me and my wife ever got divorced, she is TOTALLY ENTITLED to half of everything I have earned.

IMO anyone feeling otherwise going into a marriage should not be getting married. You are not ready for it emotionally, and you had better sign that prenup since you will be getting a divorce for sure.
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Member
Oct 2, 2005
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Before you enter a marriage you should discuss and agree on the financial arrangments between the two of you. For example, do you intend to share all your accumulated assets? do you intend to share your earned income? Do you only intend to share assets accumulated after marriage? Will you keep your assets and income separated? Depending upon what arrangement you agree to, if it differs than the default assumptions for marriage, you will definately need a pre-nup. If you can't come to agreement then you shouldn't even bother getting married.

A pre-nup will formalize a finanical arrangement which differs from the standard assumed arrangement for marriage. IOW, you are entering into a marriage contract, regardless of whether you get a pre-nup or not. They only question is whether the both of you agree to the default arrangement or not. There are some things which cannot be covered by a pre-nup, even if you both agreee (for example, support arrangements for future children)

Another potential reason to formalize your finanical arrangement is because the "default" finanical arrangement is subject to change by new or revised govenment legislation, so in effect without a pre-nup the arrangement between you and your spouse may be changed without your explicit consent.

Unlike, some posters, I do not believe that there is simply only one possible financial arrangement for marriage and if you don't agree, you should abandon marriage. IMO marriage is a mutually agreed arrangement between two parties and should be formalized in a pre-nup. Most people at the time they get married, are not aware of the financial commitments they are signing up for, since it is implicit in marriage. They only find out after a marriage fails. A pre-nup makes these arrangments explicit.

The thing that most troubles me about your question is that you seem to believe it is fair to preserve your assets accumulated through your income, but believe that you would be "@#$% myself over" if you allowed your prospective spouse to do the same.

In the end it doesn't matter what your position, so long as you and your spouse agree on a position. That will determine if you need a pre-nup. IOW, do something you might find even harder than saying "I do": Talk to your financee about your finanical arrangements.

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