Second Time Around: Why Marriage Contracts Matter More in Second Marriages

An older couple celebrates their wedding sitting behind a table covered in flowers, champagne, and tapered candles. The bride, with short gray hair and dressed in a wedding dress, smiles happily at the groom in a grey suit, while she lifts his bearded chin with her finger, representing second marriage contracts.

Written on behalf of Shariff & Associates

Second marriages offer a new beginning, but they also come with unique legal and financial complexities that couples should not overlook. From blended families and children from prior relationships to accumulated assets and past financial obligations, the dynamics of a second marriage differ significantly from those of a first. This is why marriage contracts (also known as prenuptial agreements) can be even more important the second time around.

For Ontario couples entering into a second marriage, taking the time to carefully structure a marriage contract is not only a wise legal step, but it is also a vital tool for protecting personal interests, preventing future disputes, and fostering transparency in the relationship.

In this article, we examine why marriage contracts are more significant in second marriages, what they can and cannot do under Ontario law, and how to approach them thoughtfully and respectfully.

Understanding Marriage Contracts in Ontario

A marriage contract is a legally binding agreement between two spouses that sets out their rights and responsibilities during the marriage and in the event of separation, divorce, or death. In Ontario, marriage contracts are governed by the Family Law Act, which allows them to address a wide range of issues, including property division, spousal support, and estate planning matters.

These agreements must be in writing, signed by both parties, and witnessed to be enforceable. While some people associate them with mistrust or pessimism, marriage contracts, when approached collaboratively, can strengthen a couple’s mutual understanding and reduce the risk of conflict down the road.

Why Second Marriages Are Legally More Complicated

Second marriages often carry a legacy of prior legal and financial arrangements that cannot be ignored. These may include:

  • Obligations from a prior divorce, such as spousal or child support
  • Ownership of real estate or businesses acquired before the second marriage
  • Inheritance rights and estate plans involving children from previous relationships
  • Pension entitlements or other long-term financial interests

In many cases, both partners may be bringing significant assets and liabilities into the marriage. They may also have adult children or blended family dynamics that require clear planning to prevent future misunderstandings.

Without a marriage contract in place, Ontario’s default family law rules will govern property division and spousal support in the event of separation or death, rules that may not reflect the intentions of the couple or the unique context of their second marriage.

Blended Families and Protecting Children’s Inheritance

One of the most common motivations for second-marriage couples to enter into a marriage contract is the desire to protect children from a prior relationship. In Ontario, unless otherwise agreed, a surviving spouse may have rights under the Family Law Act and the Succession Law Reform Act that can override a will or otherwise affect how assets are distributed after death.

This can lead to unintended outcomes where a surviving spouse receives a larger share of the estate than either partner intended, leaving children with less than expected or, in some cases, excluded altogether.

A marriage contract can be used to:

  • Confirm that each spouse will retain ownership of certain pre-marital or inherited assets
  • Waive entitlements under the equalization of net family property rules
  • Set out how assets will be divided in the event of separation or death
  • Work in tandem with estate planning tools, such as wills and trusts, to ensure that children’s inheritance is preserved

For blended families, clarity is essential, not only to preserve assets but also to prevent family disputes and litigation after the death of a loved one.

Managing Expectations About Spousal Support

Spousal support can be a sensitive and often litigated issue in divorce. In a second marriage, especially when both parties are older, financially independent, or have obligations to prior spouses, there may be a strong desire to limit or eliminate spousal support obligations in advance.

Ontario law allows parties to a marriage contract to make binding agreements about spousal support, provided those terms are fair and not contrary to public policy. A well-drafted contract can specify:

  • Whether either party will be entitled to spousal support in the event of separation
  • The amount and duration of support, if any
  • A waiver of future claims, if mutually agreed upon and properly disclosed

Importantly, a court can override a spousal support waiver if it finds the agreement to be unconscionable at the time of enforcement—especially if circumstances have changed dramatically or one party is left in significant hardship. That is why it is crucial that marriage contracts are negotiated in good faith, with full financial disclosure and independent legal advice on both sides.

Property Division: Opting Out of Equalization

In Ontario, the default rule for married couples is that upon separation, the net family property is equalized, meaning each spouse is entitled to half of the increase in value of the other’s property acquired during the marriage.

For second-marriage couples, this rule may not be desirable. For example:

  • One or both spouses may own a home or business acquired before the relationship
  • They may want to exclude certain assets from division
  • They may wish to preserve property for their respective children

A marriage contract can override Ontario’s equalization rules by clearly stating which assets are excluded from division and how other property will be treated. However, for these exclusions to be enforceable, the contract must be precise, and both parties must provide full financial disclosure.

Failure to do so can result in the contract being set aside by a court under section 56(4) of the Family Law Act, particularly if one party did not understand the implications of the agreement or was pressured into signing.

What a Marriage Contract Can’t Do

While marriage contracts are powerful tools, they do have legal limits. For example:

  • Child support cannot be waived or limited in a marriage contract. The right to child support belongs to the child, and Ontario courts will not enforce provisions that reduce or eliminate this obligation.
  • Decision-making responsibility and parenting time (formerly referred to as custody & access) arrangements for children cannot be finalized in advance through a marriage contract, as these matters are always subject to the child’s best interests at the time of separation.
  • Marriage contracts cannot override federal or provincial pension legislation, though they can coordinate with pension division rules where appropriate.

Understanding these limitations is crucial to avoiding false assumptions about what a marriage contract can achieve.

Timing Matters: Before or After the Wedding?

Ideally, a marriage contract should be negotiated well in advance of the wedding. This ensures that both parties have sufficient time to reflect, obtain legal advice, and avoid the appearance of duress or undue pressure—factors that can undermine the enforceability of the agreement.

However, marriage contracts can also be entered into after the wedding. These are often referred to as postnuptial agreements and are equally valid under Ontario law, provided they meet the same requirements of disclosure, voluntariness, and receipt of legal advice.

In a second marriage, where both parties may be balancing competing obligations and interests, a postnuptial agreement can be an effective way to clarify expectations after the relationship has already begun.

Independent Legal Advice: A Critical Safeguard

To ensure that a marriage contract stands up in court, both parties must receive independent legal advice (ILA) before signing. This means that each party must consult with their own lawyer, who will review the agreement, explain its implications, and confirm that it was entered into voluntarily.

Courts take the presence (or absence) of ILA very seriously when evaluating whether to uphold a marriage contract. Without it, there is a greater risk that the contract could be invalidated on the basis of unfairness or lack of informed consent.

Collaborative Approaches to Negotiation

Discussing a marriage contract doesn’t have to be adversarial. Many Ontario family lawyers now offer collaborative family law services, allowing couples to negotiate marriage contracts in a cooperative, interest-based environment. This can be particularly valuable in second marriages, where protecting relationships with children and stepchildren may be just as important as protecting assets.

Couples can also use financial advisors, mediators, or estate planners to support the process. A team-based approach can ensure that the resulting agreement reflects both parties’ values and goals while reducing the emotional stress of negotiation.

Conclusion: Peace of Mind Through Proactive Planning

Second marriages are about hope, renewal, and building a shared future. However, they also require careful planning, especially when children, assets, and past legal obligations are involved. A thoughtfully crafted marriage contract can provide clarity, security, and peace of mind—not only for the couple but also for their extended families.

In Ontario, the law recognizes and supports the use of marriage contracts, provided they are entered into voluntarily, with full financial disclosure and independent legal advice. For anyone entering a second marriage, it is well worth having a candid conversation with a qualified family lawyer about the benefits of a customized agreement.

The second time around, love may feel familiar, but the legal landscape is anything but. A marriage contract is your opportunity to define your own path forward, protect what matters most, and create a stronger foundation for the life ahead.

Shariff & Associates: Family Lawyers for Second Marriage Contracts, Prenuptial Agreements, and Asset Protection

The legal complexities of a second marriage involving blended families, existing assets, and prior obligations make proactive planning essential. The experienced family lawyers at Shariff & Associates specialize in drafting and reviewing detailed marriage contracts (often called prenuptial agreements) tailored to your unique circumstances. We help you define property division, protect children’s inheritances, and ensure complete transparency. Don’t leave your important financial matters to chance; contact us today to secure your agreement and build a stronger foundation for your future. Reach out online or call 905-591-4545.