Postnuptial Agreements in Alberta: Signing One After You Marry

A postnuptial agreement is a written agreement between spouses made after they are already married. Couples sometimes sign one after a business starts, after an inheritance, or when they simply never made a prenup.

Alberta law allows these agreements, but only if they are made the right way. This article explains what a postnup can cover and what makes it enforceable.

This article covers the law of Alberta.

What a postnup is and where the law recognises it

The Family Property Act covers a written agreement between spouses, and nothing in the relevant sections requires it to be made before the wedding. So a postnup is recognised through the same provision as a prenup.

When an agreement is enforceable under section 38, the Act's default division rules do not apply to the property it covers.

What makes a postnup enforceable

Each spouse must acknowledge in writing, apart from the other, that they are aware of the nature and effect of the agreement, understand their possible future claims and intend to give them up as the agreement provides, and are signing freely and voluntarily. Each acknowledgment must be made before a lawyer other than the lawyer acting for the other spouse. This is the Alberta statutory form of independent legal advice for property agreements.

One difference from a prenup: the requirement that the agreement make clear it continues after marriage applies only to agreements made before marriage. A postnup does not need that extra statement.

An agreement is also unenforceable by a spouse who knew or had reason to believe the marriage was void when the agreement was made.

What a postnup can cover

An agreement may set out how property is distributed on separation or on dissolution of the marriage, and it can cover property owned when signed or acquired later.

• The family home and other property you hold now.
• A business or investments, including how future growth is treated.
• Property you expect to acquire later.

Whether a particular asset is best handled in the agreement depends on the facts, so a lawyer can help you describe it clearly.

What happens without a valid agreement, and its limits

If an agreement does not meet the requirements, it does not displace the default rules, and the Court can still consider its terms as one factor. The default is equal distribution of non-exempt property acquired during the marriage unless that would not be just and equitable.

A postnup does not give you control over everything. Spouses may agree in writing to release each other from spousal support, but a court can depart from the agreement if it is inequitable and a listed circumstance exists, such as the challenging spouse having no independent legal advice. Child support is set under the Child Support Guidelines, not by the parents' agreement alone. Parents also cannot bind the court in advance on parenting time or decision-making.

What to do next

• Agree on what you want the agreement to cover.
• List your property, including the home, business interests and savings.
• Each of you should meet your own lawyer, not the same one.
• Sign only when you both understand the agreement and are not pressured.
• If you signed an agreement before 2020, ask a lawyer how the rules in force when it was made apply to it.

Frequently asked questions