Postnuptial Agreements in Alberta: What They Are and When They Work

A postnuptial agreement is a written agreement signed after you are already married. Couples use one when circumstances change, such as starting a business, receiving an inheritance or rethinking finances.

This article explains what Alberta law allows and how a postnup is enforced. A lawyer can confirm how it fits your situation.

This article covers the law of Alberta.

What a postnup is and how Alberta treats it

Section 37(1) of the Family Property Act covers a written agreement between spouses, and nothing in sections 37 and 38 requires it to be made before the wedding. An agreement that meets section 38 replaces the default division rules for the property it covers.

Without an agreement that meets section 38, the default rules can apply. Under those rules, property acquired during the marriage that is not exempt is distributed equally between the spouses unless it would not be just and equitable to do so.

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. The Court distributes in a just and equitable manner any increase in value of that exempted property up to the time of trial. A postnup is one way a couple can set out their own approach in place of those default rules.

What it can cover

An agreement may set out how property is to be distributed on separation, on becoming former adult interdependent partners, or on dissolution of the marriage. It can cover property owned when it is signed or acquired later.

Spouses may also agree on spousal support, including a release, but a court can depart from an inequitable support agreement in listed circumstances. A support agreement cannot vary an existing support order.

Some things cannot be fixed by agreement. Parents cannot bind the court in advance on parenting, and an agreement does not prevent a child support application.

• Property division on separation or the end of the marriage, for property owned now or acquired later.
• Spousal support, including a release, within the limits of the Family Law Act.
• Child support is not settled by private agreement alone, because the amount is set by the Child Support Guidelines.
• Parenting is decided by the court on the child's best interests, not by what the parents agreed in advance.

Where a postnup has limits

A support release is allowed by statute, but it is not final in every case. Under the Family Law Act, a support agreement can be overridden if the spouse challenging it entered into it without independent legal advice and the agreement is inequitable. Other listed circumstances include a spouse or partner receiving government financial assistance without reasonable support from the other.

On a divorce, the court looks at each spouse's condition, means, needs and other circumstances, including any agreement relating to support. A waiver is weighed against objectives such as recognizing economic advantages or disadvantages and relieving economic hardship. The Justice Canada guide on spousal support describes complete waivers as often fairly easily overridden or set aside, especially where there are children.

Children's matters are treated separately. A child support order ends any earlier child support agreement, and a court may depart from the guideline amount where it would be inequitable given special provisions for the child's benefit. Before varying a parenting order, the court must be satisfied that the child's needs or circumstances have changed. How these rules apply to you depends on your situation, so it is worth confirming with a lawyer.

Postnup compared with prenup

How it is enforced

Each spouse must give a separate written acknowledgment, before a lawyer who does not act for the other, that they understand the agreement and their possible future claims, intend to give them up, and are signing freely and voluntarily.

If the agreement does not meet section 38, it does not displace Part 1, and the default rules can apply, with the agreement considered as one factor. A spouse who knew or had reason to believe the marriage was void cannot enforce the agreement.

An application is made to the Court of King's Bench by statement of claim.

A spouse may apply for a family property order only if a condition is met, such as a divorce judgment, or the spouses having lived separate and apart for at least one year immediately before the application. For the one-year-separation grounds, the application must be commenced within 2 years after the spouses separated, and one reconciliation period of up to 90 days is excluded. The residence tests in section 3(1) also apply, although if a divorce claim is issued in Alberta either party may apply.

What to do next

• List your property, debts and income so the agreement reflects them.
• Each of you should arrange your own lawyer for the acknowledgment.
• Decide what the agreement should say about support.
• Keep signed copies and the acknowledgments together.

If you already have an older agreement, note that agreements signed before 2020 are judged by the rules in force when they were made. Whether an existing or planned agreement will hold up depends on your facts, so it is worth confirming with a lawyer before you sign or rely on it.

Frequently asked questions