- Alberta recognizes a written agreement between spouses made after the wedding, using the same section of the Family Property Act that covers prenups.
- To be enforceable, each spouse must sign a separate written acknowledgment before a lawyer who does not act for the other spouse.
- A prenup must say it continues after the marriage, but a postnuptial agreement does not need that extra statement.
Many couples think about property terms only after they are married. Maybe one of you has started a business, received an inheritance, or taken on a large debt, and you want to set out in writing who keeps what if the relationship ends.
In Alberta this kind of agreement is often called a postnuptial agreement, or postnup. This article explains whether Alberta recognizes one, how it has to be signed, and how it differs from a prenup.
This article covers the law of Alberta.
Does Alberta recognize a postnuptial agreement?
Yes. The Family Property Act deals with written agreements between spouses, and nothing in sections 37 and 38 requires the agreement to be made before the wedding. A postnup is simply that kind of agreement, made once you are already married.
When an agreement meets the Act's signing rules, the default division rules in Part 1 of the Act do not apply to the property the agreement covers. The agreement can set out how property is divided on separation, on becoming former adult interdependent partners, or on the end of the marriage, and it can cover property you own now or acquire later.
How a postnuptial agreement must be signed
The signing rules are strict. An agreement is enforceable only if each party has acknowledged in writing, apart from the other party, three things: that they are aware of the nature and effect of the agreement, that they understand their possible future claims under the Act and intend to give them up as the agreement provides, and that they are signing freely and voluntarily.
Each acknowledgment must be made before a lawyer other than the lawyer acting for the other party. This is the Alberta statutory form of independent legal advice for property agreements, and it is more than just receiving advice, because the written acknowledgment itself is made before the lawyer.
- Each spouse gives their own written acknowledgment, apart from the other.
- Each acknowledgment is made before a lawyer who does not act for the other spouse.
- The acknowledgment confirms you understand the effect of the agreement and are signing freely and voluntarily.
- The agreement is in writing and covers the property you intend it to cover.
Postnup versus prenup
Both are handled under the same provisions and need the same formalities. The main difference is a continuing-intent rule that applies only to agreements made before marriage.
| Point | Prenup | Postnup |
|---|---|---|
| Signing formalities | Separate written acknowledgments before a lawyer not acting for the other party | Same requirements |
| Must say it continues after marriage | Yes, unless it is clear the parties intended it to apply after the marriage | No, because the parties are already spouses |
| Can cover later-acquired property | Yes | Yes |
When a postnuptial agreement may not work
If an agreement does not meet the signing rules, it does not displace Part 1 of the Act. The default rules can apply, and a court can still consider the terms of an oral or written agreement as one factor. The default result for non-exempt property acquired during the marriage is an equal division unless that would not be just and equitable.
- A spouse who knew or had reason to believe the marriage was void cannot enforce the agreement.
- A person who knew or ought to have known there was no valid adult interdependent relationship is in the same position.
- Agreements signed before the current provisions came into force are judged by the rules in force when they were made.
The Act has no separate section giving a judge a general power to set aside a compliant agreement as unfair, so enforceability turns mainly on the signing rules. Whether other legal arguments might apply in your situation depends on the facts and is worth confirming with a lawyer.
What to do next
- List the property you want covered, including what you own now and what you may acquire later.
- Decide whether you also want to address support or children, which are treated differently from property.
- Each of you should arrange your own lawyer, and neither lawyer can act for the other spouse in giving the acknowledgment.
- Keep a signed copy of the agreement and both acknowledgments in a safe place.
Frequently asked questions
Can we sign a postnuptial agreement without lawyers?
Not if you want it to be enforceable under the Family Property Act. Each spouse's written acknowledgment must be made before a lawyer, and that lawyer cannot be the lawyer acting for the other spouse.
Do we both need different lawyers?
Each party needs a lawyer who is not the other party's lawyer. That lawyer does not have to be a different one from the lawyer acting for that party.
Does a postnup have to say it continues after the marriage?
No. That requirement applies to agreements made before marriage, and a postnup is made by people who are already spouses.
What happens if our agreement is not valid?
The default rules in Part 1 of the Family Property Act can apply, and the court may still look at the agreement as one factor. For property acquired during the marriage, the starting point is an equal division unless that would not be just and equitable.
Sources
- Family Property Act, s. 37(1) (Alberta King's Printer) — kings-printer.alberta.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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