Do You and Your Partner Need Separate Lawyers for a Prenup in Alberta?

Many couples drafting a prenuptial or postnuptial agreement ask the same practical question: can we save time and cost by using one lawyer, or does each of us need our own? The answer matters because a mistake in how the agreement is signed can leave it unenforceable.

This article explains what Alberta's Family Property Act requires, how the lawyer-witnessed acknowledgment works, what happens if it is missing, and how it differs from the independent legal advice ground that applies to spousal support terms.

This article covers the law of Alberta.

The short answer: each person needs a lawyer who is not the other's

Under section 38 of the Family Property Act, each party's written acknowledgment must be made before a lawyer other than the lawyer acting for the other party. In practice, that means a lawyer who acts for your partner cannot be the lawyer who takes your acknowledgment, and the reverse is also true. The safe and ordinary approach is for each of you to meet your own lawyer.

The acknowledgment is made apart from the other party. You are not meant to sign it in a joint meeting with your partner. A lawyer can confirm how to arrange this in your situation.

What the acknowledgment must confirm

An agreement is enforceable only if each party has acknowledged in writing three things. The list below sets them out in plain words.

• 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 signing freely and voluntarily.

This is Alberta's statutory form of independent legal advice, often shortened to ILA. It is more than receiving advice. It is a signed acknowledgment, made before a lawyer who does not act for the other party. An agreement that meets these requirements replaces the default division rules for the property it covers.

Prenups and postnups follow the same process

A postnuptial agreement is recognised through the same provision as a prenup, and nothing in sections 37 and 38 requires an agreement to be made before the wedding. A postnup must meet the same formalities: each spouse's separate written acknowledgment made before a lawyer who does not act for the other.

There is one difference. An agreement made before marriage is unenforceable after the marriage unless it is clear that the parties intended it to apply or continue to apply after the marriage. That extra statement of continuing intent is not required for an agreement made after the marriage.

What happens if the acknowledgment is missing

If an agreement does not meet section 38, it does not displace Part 1 of the Family Property Act, so the default rules can apply. For property acquired during the marriage that is not exempt, the court shall distribute it 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 its market value, and the court distributes any increase in its value in a just and equitable manner.

The agreement is not necessarily ignored. The court can still consider the terms of an oral or written agreement between the spouses as one factor. That is very different from being bound by it.

The Act has no separate section giving a judge a general power to set aside a compliant agreement as unfair. Arguments about unfairness or pressure at signing are matters of case law rather than a statutory ground, so a lawyer can explain how they might apply to you.

A different test for spousal support terms

Do not confuse section 38 with the independent legal advice ground in the Family Law Act. Spouses may agree in writing that one will pay support or that one releases the other from support. A court may not make a support order that differs from the agreement unless it is satisfied that the agreement is inequitable and one of the listed circumstances exists.

One of those circumstances is that the spouse challenging the agreement entered into it without receiving independent legal advice. So, for support terms, missing legal advice helps only when the agreement is also inequitable. For property terms, the lawyer-witnessed acknowledgment decides enforceability.

Older agreements and what to do next

Agreements that were enforceable under the earlier law when signed remain enforceable, so agreements from before 2020 are judged by the rules in force when they were made.

• Each of you should book a separate lawyer early, well before the wedding or the signing date.
• Confirm that neither lawyer acts for the other party.
• Ask each lawyer to take your written acknowledgment apart from your partner.
• For a prenup, make sure the agreement says it continues after the marriage.
• Keep signed copies of the agreement and both acknowledgments.
• If you have an older agreement, have a lawyer review it against the rules that applied when it was signed.

Frequently asked questions