Are Prenuptial Agreements Enforceable in Alberta? What Courts Look For

If you are engaged or already married and have signed a prenuptial agreement, the main question is whether an Alberta court will actually follow it. The answer depends mostly on how the agreement was signed, not just on what it says.

This page explains the formal steps Alberta's Family Property Act sets out, what happens when an agreement misses them, and why some topics, such as support and children, are handled differently. It is general information, not advice on your own agreement.

This article covers the law of Alberta.

What makes a property agreement enforceable

Part 1 of the Family Property Act contains the default rules for dividing property. Those rules do not apply to property covered by a written agreement between spouses or adult interdependent partners that is enforceable under section 38.

Under section 38(1), an agreement is enforceable only if each party has acknowledged in writing, apart from the other party, three things.

• They are aware of the nature and effect of the agreement.
• They understand their possible future claims under the Act and intend to give them up as the agreement provides.
• They are signing freely and voluntarily.

Each acknowledgment must be made before a lawyer other than the lawyer acting for the other party. This is Alberta's statutory form of independent legal advice, and it is more than receiving advice, because the written acknowledgment itself is made before the lawyer.

Extra rules that apply to a prenup

An agreement made before marriage is unenforceable after the marriage unless it is clear in the agreement that the parties intended it to apply or continue to apply after the marriage. A prenup should therefore say expressly that it continues after the wedding.

A prenup may set out how property is to be distributed on separation, on becoming former adult interdependent partners, or on dissolution of the marriage, and it can cover property owned at signing or acquired later.

There is also an exception. An agreement is unenforceable by a spouse who, when it was made, knew or had reason to believe the marriage was void. The same applies to a person who knew or ought to have known there was no valid adult interdependent relationship.

What happens if the formalities are missed

If an agreement does not meet section 38, it does not displace Part 1, so the default rules can apply. The court can still consider the terms of an oral or written agreement as one factor under section 8(g).

The Act has no separate section giving a judge a general power to set aside a compliant agreement as unfair. Enforceability turns on sections 37 and 38.

The default result for non-exempt property acquired during the marriage is equal distribution, unless that would not be just and equitable. Exempt property, such as gifts from third parties, inheritances and property acquired before the marriage, is excluded at its market value on the applicable date, and the court distributes any increase in its value in a just and equitable manner.

Support and children are different

A written agreement can release a spouse from spousal support. However, the court may depart from the agreement if it is satisfied the agreement is inequitable and one of the listed circumstances exists. One listed circumstance is that the person challenging it signed without independent legal advice.

Federal law also matters if there is a divorce. A support order should recognize economic advantages or disadvantages from the marriage or its breakdown and relieve economic hardship, and a waiver is weighed against those objectives. Complete waivers are described as often fairly easily overridden or set aside, especially where there are children.

Child support is set under the Child Support Guidelines, not by the parents' private agreement alone. Parents also cannot bind the court in advance on parenting time or decision-making, because the court considers only the best interests of the child.

What to do next

• Find your signed agreement and check whether it says it continues after the marriage.
• Confirm that each of you signed a written acknowledgment before a lawyer who did not act for the other.
• Check whether it covers property only, or also support and children.
• Note when it was signed, since older agreements may be judged by earlier rules.
• Have a lawyer review it before you rely on it, sign it or try to challenge it.

Frequently asked questions