We're Already Married — Is It Too Late to Protect the Home by Agreement? Richmond Hill Chinese-Speaking Divorce Lawyer: No, a Marriage Contract Works

A client called me today. The situation: the couple is already married, and the down payment on their home came from the parents — who expect to get that money back one day. The client had heard it said that a matrimonial home is always split 50/50 on divorce, that signing an agreement is useless, and that even a waiver is useless. They asked me: is that true? I said no. I’ve heard this claim more than once, so let me settle it here.

Short answer: it’s not too late — a marriage contract is just as valid

Many people think agreements can only be signed before the wedding — a prenup. Signed after marriage, too late. Not true.

Section 52(1) of Ontario’s Family Law Act says exactly this: two persons who “are married to each other” or “intend to marry” may enter into a marriage contract. One signed after the wedding is called a marriage contract, and it carries the same legal weight. You’re already married and signing now? Perfectly fine.

What the agreement can cover: who gets the home, and how the parents get their down payment back

Section 52(1)(a) allows a marriage contract to deal with “ownership in or division of property” — who owns what and how it’s divided. So:

First, who gets the matrimonial home — you can put it in writing. The agreement can say the home goes to one spouse, or set out how its value is divided. Without an agreement, the matrimonial home’s full value goes into equalization by default (s. 5(2) — even its pre-marriage value can’t be deducted). With an agreement, the agreement governs.

Second, the parents’ down payment — you can put that in writing too. The agreement can state the money was a loan, not a gift, to be repaid to the parents first on divorce or sale, with the rest divided after. That protects the parents’ money.

Will a court honour this kind of agreement? Yes — and the Supreme Court set the rules

There is case law: Hartshorne v. Hartshorne, 2004 SCC 22. The facts were close to today’s topic: the couple signed an agreement on their wedding day saying each keeps their own property. The wife later gave up her law practice for the family. After separation, the trial judge found the agreement unfair to the wife and set it aside. The Supreme Court said no — the agreement stands, and both sides are bound by it.

The Supreme Court laid down principles in that case. In plain English:

First, a deal is a deal. Once signed, both sides are expected to honour their commitments — you can’t show up at divorce and simply say “I don’t want to be bound anymore.”

Second, courts shouldn’t second-guess. When spouses have made their own arrangements for their property, courts should respect that — especially where both sides had independent legal advice and understood what they were signing.

Third, “unfair” doesn’t just mean “different from the statutory default.” A court can’t call an agreement unfair merely because it deviates from the equal-division regime.

Fourth, so how is fairness judged? Four things: what was within the parties’ realistic contemplation when they signed; whether they turned their minds to possible changes in circumstances; what their true circumstances are now; and whether the gap is wide enough to require a different division.

In Ontario, this maps onto the three hard grounds in s. 56(4): a party hid significant assets or debts when the agreement was made; a party didn’t understand the nature or consequences of the agreement; or the agreement should be set aside under ordinary contract law (coercion, fraud, and the like). The Supreme Court added in Rick v. Brandsema, 2009 SCC 10 that full financial disclosure before signing is essential — hide things, and the agreement is in danger.

So: sign it properly, and the court honours it; sign it sloppily, and it may not survive.

But there’s a boundary — two things the agreement can’t touch

Section 52(2) sets a limit: a provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial Home) is unenforceable. Part II rights are mainly two: during the marriage, both spouses have an equal right to possess the home (s. 19) — neither can lock the other out; and neither can sell or mortgage it without the other’s consent (s. 21).

Keep the distinction clear: how the money is divided and who gets the house — writable; “you move out on divorce” or “I can sell without your signature” — not worth the paper. Get this boundary right, and your agreement is bulletproof.

Double protection for the parents’ down payment

Writing it once in the marriage contract isn’t enough in my view — go for double protection:

First layer: a written loan agreement between the parents and the couple. The Court of Appeal in Chao v. Chao gave five factors to follow: put in writing at the time that it’s a loan; agree on how it’s repaid; any security; whether only this child received money or the children were treated differently; whether repayment was demanded before separation. The more of these you satisfy, the less anyone can call it a “gift.”

Second layer: confirm the loan in the marriage contract, stating it’s a joint debt of the couple to be repaid to the parents in priority on divorce or sale.

With both layers in place, the parents get their money back when they want it back.

Four things an agreement needs to survive in court

Finally: for a marriage contract to hold up, four things are non-negotiable. First, in writing — printed out. Second, signed by both parties. Third, signed by a witness (s. 55(1) — a hard requirement). Fourth, each side has their own lawyer review it (independent legal advice), with full disclosure of each side’s assets and debts beforehand. Most agreements fail not on content but on procedure — no witness, no disclosure, one side without a lawyer — and when challenged at divorce, the agreement is left hanging.

So back to the client’s question: we’re already married — is it too late to sign an agreement saying the matrimonial home is mine and my parents get their down payment back? Not too late. A marriage contract signed after the wedding works just as well. But sign it properly — signed right, it works. Book an initial consultation (30 minutes, $220+HST). Call 647-930-6688.

This article is general legal information, not legal advice, and does not create a lawyer-client relationship.