A prenuptial agreement is a marriage contract between you and your intended spouse. Entered into before marriage, a prenup does not become enforceable until after you’re married. If you and your spouse ever separate or get divorced, your prenuptial agreement can change the way matrimonial property is divided. For some couples, a prenup offers peace of mind before making an important personal and legal commitment.
Learn more about prenuptial agreements and the formal requirements that make them enforceable.
What is a prenuptial agreement?
A prenuptial agreement addresses matrimonial property you and your spouse own jointly or separately. Your prenup can change the way such property is divided under Alberta’s Matrimonial Property Act, provincial legislation that governs how property is divided if a marriage breaks down. More specifically, Sections 37 and 38 of the Act govern prenuptial agreements.
The contractual terms within a prenuptial agreement can help you determine how to divide property and debt during your marriage. They specify the division of debt and property in the event of future separation or divorce. In some circumstances, they also define the amount of spousal support payable.
Why get a prenuptial agreement?
Contrary to popular belief, prenuptial agreements are not limited to those getting remarried. People who get prenups are typically those entering relationships with significant disparities of assets or debts. Therefore, you may want a prenuptial agreement even if you’re getting married for the first time—especially if you’re bringing financial assets, children or both to your marriage.
Unless they’re excluded by law from division, assets are divided equally per the Matrimonial Property Act. Thus, if you’re coming into your marriage with assets from a previous relationship, a prenup may make it possible for you to exclude them from future property division. You can specify that assets accumulated during your lifetime go to your children or family members. Therefore, if stipulated in a prenuptial agreement, family law and the Matrimonial Property Act may not apply.
If you’ve already experienced divorce, you may feel more secure knowing you have legal recourse in the event of future separation, divorce or death.
What are the formal requirements for a prenuptial agreement?
Generally, a prenuptial agreement made in any province or territory except Quebec is enforceable in any other province or territory other than Quebec.
However, to be enforceable, the agreement must fulfill formal requirements. Each party must sign the prenuptial agreement before a different lawyer. If representing one spouse, the lawyer may not represent the other spouse.
When signing the agreement, the spouses must each acknowledge that they
- are aware of the prenuptial agreement’s nature and effect
- are aware of potential future claims to property and that they intend to waive those claims in favour of the terms of the agreement
- are signing the agreement freely and voluntarily, without any compulsion from the other party
Failure to observe these formal requirements may render the agreement unenforceable in court.
Things to consider in a prenuptial agreement
A prenuptial agreement allows a couple to determine sharing of assets, including their matrimonial home, on separation, divorce or death. What happens if the spouse who owns your family home dies? Should the surviving spouse be allowed to live in the house? If so, for how long? If not, a prenuptial agreement can stipulate that the surviving spouse can buy the home from the deceased’s estate.
Although a legally binding contract, provisions set forth in your initial prenuptial agreement may no longer apply to future situations. You and your spouse may need to make changes to reflect new circumstances should your marriage dissolve or stay intact.
Prenuptial agreements specify how joint assets are to be divided in the event of separation or divorce. Think not only about property division, but also about the formula you’ll apply and how funds will be distributed. Minimize potential conflicts by removing ambiguity.
Challenging a prenuptial agreement
It’s possible to challenge a prenuptial agreement based on
- extreme unfairness
- inadequate financial disclosure
Unless such grounds for challenge are clear and compelling, Alberta courts tend to enforce prenuptial agreements.
Consult with a skilled family lawyer
At Lift Legal, we understand that it may be uncomfortable to talk with your soon-to-be spouse about this topic; however, we believe it’s important to consult with a qualified lawyer before signing your prenuptial agreement. We recommend setting up a consultation at least three months ahead of your marriage.
Our family lawyers will listen to your reasons for wanting a prenuptial agreement and advise whether we believe such a marriage contract is right for you. When negotiating your agreement, we’ll ensure that it protects you and addresses your particular legal needs.
To learn more about prenuptial agreements, contact us today.
The information on this blog and website is provided by Lift Legal for educational purposes only. It is intended to give readers a general understanding of the law, not to provide specific legal advice. Information contained in these pages should not be used in place of competent legal advice from a licensed, practising lawyer in Alberta. Furthermore, by using this blog and website, you understand that no lawyer-client relationship exists between you and Lift Legal.