Prenuptial Agreements for Canadians marrying Thais

PRENUPTIAL AGREEMENTS FOR
CANADIANS MARRYING THAIS

August 6, 2013
By William F. White
Managing Director

Thailand Canada Prenuptial Agreement

Any person from Canada considering entering into a prenuptial agreement (prenup) prior to marriage to a Thai Citizen, needs to take into account the law governing prenuptial agreements both in Canada and in Thailand. The law regarding prenuptial agreements in Thailand may be examined in full on our firm’s website at:

http://thaicondolaw.pingstone.com/special-considerations-thai-marriages/

The law in Canada on prenuptial agreements varies from province to province, much like the variation from state to state in United States. However, prenuptial agreements are generally enforceable in all Canadian provinces. When a citizen of Canada enters into a prenuptial agreement with a Thai citizen, they need to consider both Canadian Federal law and Canadian Provincial law.

CANADA FEDERAL LAW ON PRENUPTIAL AGREEMENTS:

The Divorce Act of 1968 governs divorces throughout Canada, subject to specific substantive and procedural variation on some issues in each province, provided that such provisions are not in conflict with Canadian Federal law. The Divorce Act sets out the grounds for divorce, the requirements for spousal support, child support, custody and visitation. The Divorce Act only briefly touches upon prenuptial agreements and only with respect to spousal support orders, child support orders and variations to child support orders. The Act states that a prenuptial agreement is a factor to be considered by the Court regarding one spouse’s application for support and, that with regard to child support, custody and visitation, the Court must consider the best interests of the child or children.

The full text of the Divorce Act of Canada may be accessed at

http://laws-lois.justice.gc.ca/eng/acts/d-3.4/

The specifics of property distribution in the context of a prenuptial agreement is therefore left primarily to Provincial law which universally assumes, in the absence of an agreement to the contrary, that the principal of “equitable sharing” or marital assets should apply in the event of divorce. Couples are permitted, to a substantial degree to contract out of the presumption of “equitable sharing” of assets by entering into a prenuptial agreement (also known as a prenup or ante-nuptial agreement), with the intention of predetermining the distribution of marital assets in the event of divorce. While all provinces and territories in Canada recognize prenuptial agreements, two provinces and one territory limit the enforceability of prenuptial agreement clauses by which one party waives the right to claim and interest in the marital home. Those jurisdictions are Ontario, Manitoba and the Yukon Territory.

All Provinces and Territories in Canada require that a prenuptial agreement be in writing, as does the law of Thailand. With the exception of Manitoba, all Provinces and Territories of Canada require that a prenuptial agreement be signed by the parties and witnessed, as does the law of Thailand. Yukon Territory also requires that the witnesses be “independent”.

Five jurisdictions, Alberta, Ontario, Newfoundland, New Brunswick, and Prince Edward Island require or infer that each party must have independent legal counsel. However, currently applicable case law across Canada shows a very strong belief on the part of judge in Canada that independent counsel for both parties is to be strongly encouraged. As a practical matter, we believe that both parties should have counsel advise them independently, not just for enforceability purposes but as a matter of fundamental fairness. This principle applies in both Canada and Thailand with regard to prenuptial agreements.

Beyond the issues of property division, there is a substantial split among jurisdictions in Canada with regard to contracting on matters of child custody, visitation and support. Approximately one-half of the provinces permit couples to contract regarding custody and access and one-half explicitly forbid it. In addition, approximately one-half of jurisdiction’s statutes specifically provide that Courts may invalidate provisions in a prenuptial agreement on custody and access which is not in the child’s best interest.

For further information on source materials, please see:

Thailand Civil and Commercial Code: Family Law Provisions:

Canada Divorce Act of 1968

http://laws-lois.justice.gc.ca/eng/acts/d-3.4/

Ontario Family Law Act 1990

http://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html

British Columbia Family Law Act 2011

http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_11025_01

Alberta Family Law Act 2003

http://www.canlii.org/en/ab/laws/stat/sa-2003-c-f-4.5/latest/

Saskatchewan Family Property Act 2012

http://www.qp.gov.sk.ca/documents/english/statutes/statutes/F6-3.PDF