Can You Change or Cancel a Prenup After Marriage in Alberta?

You signed a prenup before the wedding, and now your circumstances have changed. Maybe you bought a home together, started a business, had children, or simply no longer agree with what you signed. You may be wondering whether the two of you can change it, replace it or cancel it.

In Alberta, the answer mostly comes down to paperwork. The Family Property Act sets out what makes a property agreement enforceable, and those same steps matter when you change one. This article explains the written and witnessing steps and what happens to your property rights if they are missed. It is general information, not advice on your situation.

This article covers the law of Alberta.

Can spouses change a prenup after the wedding?

Yes, in principle. The Family Property Act recognises a written agreement between spouses, and nothing in the formality rules requires that the agreement be made before the wedding. That means a married couple can sign a new agreement, often called a postnuptial agreement, that amends or replaces an earlier prenup.

An agreement that meets the Act's requirements replaces the default division rules for the property it covers. It can set out how property is divided on separation or on dissolution of the marriage, and it can cover property you own now or acquire later.

A simple verbal understanding to "forget the prenup" is not the safe route. Whether an informal change holds up depends on the facts and on the formalities below, so it is worth confirming with a lawyer before relying on it.

The written and witnessing steps

For an agreement to be enforceable, each party must acknowledge in writing, apart from the other party, three things: that they are aware of the nature and effect of the agreement, that they understand their possible future claims under the Act and intend to give them up as the agreement provides, and that 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 for property agreements. Your own lawyer can act for you, but the two of you cannot share one lawyer for this purpose.

• Put the new or amending agreement in writing.
• Each spouse meets a lawyer separately.
• Each spouse signs their own written acknowledgment of the three points above.
• Neither acknowledgment is made before the other spouse's lawyer.
• Keep the signed originals and any earlier prenup together.

What happens to your property rights

If the new agreement meets the formalities, it takes the place of the default rules for the property it covers. An agreement that does not meet them does not displace the default rules, and a court can still look at its terms as one factor among others. What that means for an earlier prenup you are trying to change depends on the facts, so it is worth confirming with a lawyer.

Those default rules generally call for equal distribution of non-exempt property acquired during the marriage, 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, though a court distributes any increase in its value up to the time of trial in a just and equitable manner.

Points that catch couples out

• A prenup must make clear that it is meant to continue after the marriage, or it may be unenforceable once you are married. A postnup does not need that extra statement.
• An agreement signed before 2020 is judged by the rules in force when it was made, and one that was enforceable then stays enforceable.
• A spouse who knew or had reason to believe the marriage was void cannot enforce a property agreement.
• Property rules are separate from support. A spousal support waiver follows different rules, and a court can depart from an inequitable support agreement in certain circumstances, including where the person challenging it had no independent legal advice.
• Parenting terms do not bind the court, which considers only the best interests of the child.

If you want to change how support is handled, treat it as its own question. A support agreement also cannot vary an existing support order.

What to do next

Start by finding your original prenup and any later changes, and write down what you want to change and why. Then each of you should speak to a separate lawyer before signing anything.

• Gather the existing prenup and a list of major assets and debts.
• Decide whether you want to amend, replace or end the agreement.
• Each book a separate lawyer to explain the effect and take your acknowledgment.
• Confirm how the new document treats property, support and any older agreement.
• Store signed copies safely, and update them if your circumstances change again.

Frequently asked questions