Prenup for a Second Marriage in Alberta: Protecting Children and Assets

When you remarry, you often bring a home, savings, a pension or children from an earlier relationship. A prenup is one way to plan for what happens to those assets if the new marriage ends.

It is also important to know its limits. Some matters, especially those involving children, are not something two adults can settle in advance.

This article covers the law of Alberta.

What a prenup can do for property

Without an agreement, property acquired during the marriage that is not exempt is distributed equally 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 market value, though the Court distributes in a just and equitable manner any increase in its value.

A written agreement that is enforceable replaces those default rules for the property it covers. It can set out how property is distributed on separation or on dissolution of the marriage, and it can cover property owned at signing or acquired later. That makes it a tool for a home you bring into the marriage or assets you want kept for your children. How a pension is treated depends on the details, so ask a lawyer how to describe it in the agreement.

Making it enforceable

• Each person must give a written acknowledgment, apart from the other, that they understand the agreement and their possible future claims, 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 party.
• The agreement should state clearly that it applies or continues after the marriage, since an agreement made before marriage is otherwise unenforceable after it.

If these steps are missed, the default rules can apply and the Court may only treat the agreement's terms as one factor. An agreement is also unenforceable by a spouse who knew or had reason to believe the marriage was void when it was made.

What a prenup cannot override: children

Child support is set under the Child Support Guidelines, not by the parents' private agreement alone. A written child support agreement does not prevent anyone from applying for a child support order, and a child support order ends any earlier agreement.

Parenting is decided on the child's best interests, and parents cannot bind the court in advance on parenting time or decision-making. Before varying a parenting order, the court must be satisfied that the child's needs or circumstances have changed. A prenup can't lock in a parenting schedule for children from either of your earlier relationships.

What a prenup cannot guarantee: spousal support

Spouses may agree in writing that one releases the other from liability for support. But a court may not make a different support order unless it is satisfied the agreement is inequitable and one of the listed circumstances exists. One is that the person challenging it signed without independent legal advice.

Even a waiver that follows the formalities is weighed against the objectives of the Divorce Act, such as relieving economic hardship. Complete waivers are described as often fairly easily overridden or set aside, especially where there are children. Treat any support term with caution.

What to do next

• List what you each own, including your home, savings and pension.
• Decide which assets you want to keep separate for your children.
• Each of you should hire your own lawyer well before the wedding.
• Ask about how wills, beneficiary designations and support fit with the agreement.
• Keep copies of the signed agreement and both acknowledgments.

Frequently asked questions