Do You Need Independent Legal Advice for a Prenup in Alberta?

If your partner has handed you a prenup and asked you to sign, one of your first questions is likely whether you need your own lawyer. In Alberta, the short answer is that the law builds legal advice into the signing process.

This article explains what the requirement is, what it involves in practice, and what can happen if one side skips it.

This article covers the law of Alberta.

Is a separate lawyer required?

Yes, in the sense that matters. Each party's written acknowledgment must be made before a lawyer other than the lawyer acting for the other party. So you each need a lawyer who is not your partner's lawyer. That lawyer does not have to be a different one from the lawyer acting for you.

The requirement comes from section 38 of the Family Property Act, and an agreement is enforceable only if it is met. A compliant agreement replaces the default property rules for the property it covers.

A property agreement can 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 when it is signed or acquired later. There is an exception: an agreement is unenforceable by a spouse who, when it was made, knew or had reason to believe the marriage was void.

What the lawyer acknowledgment involves

The acknowledgment is not just advice, because the party's written acknowledgment is made before a lawyer who does not act for the other party. It is made apart from the other party and covers three things:

• you are aware of the nature and effect of the agreement
• you understand your possible future claims under the Act and intend to give them up as the agreement provides
• you are executing the agreement freely and voluntarily

In practice, a meeting with a lawyer is where you can ask what you would give up, how the agreement treats property you own now and property acquired later, and whether the wording says it continues after the wedding. A prenup should say expressly that it continues after the wedding.

Does this apply to postnups and common-law partners?

The Family Property Act covers married spouses and adult interdependent partners, and section 37(1) refers to agreements between them. A postnuptial agreement must meet the same section 38 formalities, including each spouse's separate acknowledgment before a lawyer who does not act for the other.

A postnuptial agreement does not need the extra statement that it is meant to continue after marriage, because that requirement applies only to an agreement made before marriage. Agreements signed before the current rules took effect are judged by the rules in force when they were made.

What happens if one side skips it

If an agreement does not meet section 38, it does not displace Part 1 of the Act, so the default rules can apply. The court can still consider the agreement's terms as one factor. For property acquired during the marriage that is not exempt, the default is equal division unless that would not be just and equitable.

Spousal support is tested separately. A spousal support release is permitted by statute. A court may depart from the agreement if it is satisfied the agreement is inequitable and a listed circumstance exists. One listed circumstance is that the spouse challenging it entered into it without receiving independent legal advice.

These are different tests, so meeting one does not automatically satisfy the other.

Justice Canada's Spousal Support Advisory Guidelines guide describes complete waivers as often fairly easily overridden or set aside, especially where there are children. How this applies to your agreement depends on your situation, so it is worth confirming with a lawyer.

Children's issues work differently from property. Parents cannot bind the court in advance on parenting time or decision-making. A written child support agreement does not prevent a person from applying for a child support order.

What to do next

• Ask for the draft well before the wedding or signing date so you are not rushed.
• Choose a lawyer who does not act for your partner.
• Bring a list of your property, debts and income to the meeting.
• Ask what the agreement says about spousal support, and whether the wording continues after the wedding.
• Do not sign until you understand what you are giving up, and keep copies of everything.

If you have already signed without a lawyer, a lawyer can look at what was signed and how it applies to your property and any support terms.

Frequently asked questions