The Family Law Act of Canada allows enforcement of prenuptial agreements as before the 1978 Family Law Reform Act prenuptial agreements had not been enforceable as it was seen as being against the values of Canadian society. If you are Canadian and are getting married in Thailand then ensure that you contract is valid in Canada as well as in Thailand.
Much like other countries the Courts in Canada can declare a provision or provisions in the prenuptial agreement invalid if it is deemed to be unfair. There are examples for this in the EU as well as in Australia where support for the wife or children being the main issue.
Prenuptial Agreements in Canada
The Family Law Act allows the Courts to set aside provisions in the agreement where:
- The provision will created an unconscionable circumstance for the other party;
- The provision is illegal or immoral;
- The provision is deemed to be unfair.
The Canadian Courts take a very broad view when it comes to prenuptial agreements as circumstances might have changed since the agreement was signed. In terms of Family Law Act Section 85 the courts might view the property in terms of Canadian law which is very similar to Thai property classification which states which property is excluded from community of property:
- property acquired by a spouse before the relationship between the spouses began;
- inheritances to a spouse;
- gifts to a spouse from a third party;
- settlement or an award of damages to a spouse as compensation for injury;
- money paid or payable under an insurance policy, other than a policy respecting property;
Much like in Thailand if you wish to keep property then you need to be able to prove that the property has to be excluded as you owned the property before marriage. To avoid all these issues it is best to ensure that a proper prenuptial agreement has been drafted. The Canadian courts have and do use wide description when it comes to prenuptial agreements. Always ensure that:
- Your agreement was signed by both parties before the marriage;
- That both of you understood the agreement;
- That your Thai wife had independent legal advice on what she was signing;
- That the agreement is fair;
- That the agreement is not illegal or against moral values;
- You have written proof from the independent legal counsel that you wife understood;
- There was no duress, fraud or undue influence when signing the agreement;
- There are no impracticable provisions in the prenuptial agreement.
If you are getting married in Thailand then best allow a lawyer in Thailand to register the marriage as well as file the prenuptial agreement with the marriage application. If you do not do this correctly then it will be a very costly mistake for you. Speak to an attorney in Thailand today if you do not find the answers you are looking for on this website. Note that this website is a guide and it is always best to seek proper legal advice first.