Can a Prenup Waive Spousal Support in Alberta?

Many people who sign a marriage contract want to limit or exclude spousal support. The idea is simple: if the relationship ends, neither of you can claim support from the other.

The law is less simple. A waiver is permitted, but courts keep some power to look at it again. This article explains how Alberta law and the Divorce Act treat these clauses.

This article covers the law of Alberta.

What the law allows

Under Alberta's Family Law Act, spouses or adult interdependent partners may enter into a written agreement in which one agrees to pay support or one agrees to release the other from liability for support. So a spousal support waiver is permitted by statute, but it is subject to section 62(3).

A support agreement also has limits. It cannot vary an existing spousal or adult interdependent partner support order.

When a court can depart from the agreement

Under the Family Law Act, a court may not make a spousal support order that differs from the agreement unless it is satisfied that the agreement is inequitable and one of the listed circumstances exists. Under that Act's test, both parts are needed. If you are divorcing, the Divorce Act sets out a different weighing approach, described in the next section.

• The person challenging the agreement entered into it without receiving independent legal advice.
• A consideration for the agreement was the removal of barriers to remarriage within the spouse's faith.
• The partners were adult interdependent partners who later married each other.
• A spouse or partner receives government financial assistance without reasonable support from the other.

This independent legal advice ground is a different test from the one for property agreements. A property agreement needs a lawyer-witnessed written acknowledgment under the Family Property Act, while the support ground asks whether the challenging spouse received independent legal advice.

How the Divorce Act approaches support waivers

If you divorce, a court can order lump-sum or periodic spousal support on application. It takes into account the condition, means, needs and other circumstances of each spouse, including any order, agreement or arrangement relating to support. So the agreement is an important factor, but it is not the only one.

A support order should recognize economic advantages or disadvantages from the marriage or its breakdown, apportion the financial consequences of child care, relieve economic hardship, and as far as practicable promote economic self-sufficiency within a reasonable time. A waiver is weighed against these objectives. The court does not consider misconduct of a spouse in relation to the marriage.

Justice Canada's Spousal Support Advisory Guidelines guide says the Guidelines give no power to invalidate or override prior agreements. It also says final agreements such as a waiver are treated differently from those with a variation or review clause, and complete waivers are often fairly easily overridden or set aside, especially where there are children.

What courts look at in practice

Courts applying the Miglin approach consider whether the agreement substantially complied with the objectives of the Divorce Act at the time of negotiation, and whether the result still reflects the parties' intentions in current circumstances. Hardship for the support claimant makes departure more likely.

What a prenup cannot settle on its own

Spousal support is only one part of a separation, and a prenup does not decide everything else. Child support is set under the applicable guidelines, not by the parents' private agreement alone. Under Alberta's Family Law Act, a parent may enter into a written child support agreement, but it does not prevent anyone from applying for a child support order, and a child support order ends any earlier child support agreement.

• Parenting time and decision-making: parents cannot bind the court in advance, because the court considers only the best interests of the child under the Divorce Act.
• Under Alberta's Family Law Act, the court also considers only the best interests of the child in guardianship, parenting and contact matters.
• Property terms follow separate rules. A prenup that deals with property is unenforceable after the marriage unless it is clear the parties intended it to continue to apply after the marriage.
• For a property agreement, each party must give a written acknowledgment, apart from the other, before a lawyer who does not act for the other party.

If you are thinking about a waiver, it helps to keep these pieces separate. How each one applies depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Decide whether you want a complete waiver, a time limit, a lump sum, or a clause allowing review.
• Make sure each person gets independent legal advice before signing.
• Think about how the clause would look if one of you left work to raise children or support the other's career.
• Ask a lawyer how the clause would be treated in your circumstances, since the result depends on the facts.

Frequently asked questions