What Makes a Prenup Legally Binding in Alberta? Signing Rules

A prenup can give a couple certainty about who keeps what if the relationship ends. In Alberta, though, signing a document is not enough. The Family Property Act sets out specific steps, and missing one can change what the agreement does.

This article is a practical checklist of those steps. It covers the lawyer acknowledgment, the wording about marriage, what happens if the formalities are missed, and why support is a separate question. It explains how things generally work and is not a substitute for advice on your own agreement.

This article covers the law of Alberta.

The short answer: when a prenup replaces the default rules

Part 1 of the Family Property Act contains the default rules for dividing property. Those rules do not apply to property covered by a subsisting written agreement between spouses or adult interdependent partners that is enforceable under section 38. So a compliant agreement replaces the default rules for the property it covers.

The key word is enforceable. An agreement that is only signed, or only discussed over dinner, does not get that effect unless it meets the formal requirements in section 38.

The lawyer acknowledgment, step by step

Under section 38(1), each party must acknowledge 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.
• That they are signing freely and voluntarily.

Each written acknowledgment must be made before a lawyer other than the lawyer acting for the other party. In practice, this means the two of you cannot both rely on the same lawyer. Each person should have a lawyer who does not act for the other.

This acknowledgment is Alberta's statutory form of independent legal advice for property agreements. It is more than a conversation: the written acknowledgment is made before a lawyer who does not act for the other party.

Wording and scope: what the agreement itself must say

An agreement made before marriage is unenforceable after the marriage unless it is clear in the agreement that the parties intended it to apply or continue to apply after the marriage. A prenup should therefore say expressly that it continues after the wedding.

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.

There is one exception to know about. An agreement is unenforceable by a spouse who, when it was made, knew or had reason to believe the marriage was void. The same applies to a person who knew or ought to have known there was no valid adult interdependent relationship.

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

What happens if a step is missed

If an agreement does not meet section 38, it does not displace Part 1 of the Family Property Act. The default rules can then apply.

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 under section 8(g). That is only one item on a longer list of matters the court weighs.

The Act has no separate section giving a judge a general power to set aside a compliant agreement as unfair. Enforceability turns on sections 37 and 38. Arguments about fairness, disclosure or pressure are largely a matter of case law, and a lawyer can tell you how they might apply to your situation.

Keep support and children separate

A property prenup is only part of the picture. Spouses may agree in writing that one will pay spousal support or that one releases the other from support. That release is subject to a different test in the Family Law Act, section 62(3).

Under that test, a court may not make a support order that differs from the agreement unless it is satisfied the agreement is inequitable and one of the listed circumstances exists. One of those circumstances is that the person challenging the agreement entered into it without receiving independent legal advice. Note that this is a separate test from the section 38 acknowledgment for property.

Children's matters are also outside what a prenup can fix in advance. Parents cannot bind the court in advance on parenting time or decision-making. A written child support agreement does not prevent anyone from applying for a child support order.

What to do next

• Put the agreement in writing and make sure it covers the property you intend, whether owned now or acquired later.
• Include clear wording that the agreement is meant to continue after the wedding.
• Each of you should arrange your own lawyer, and make sure neither lawyer acts for the other person.
• Allow time for each of you to sign your acknowledgment separately, apart from the other.
• Ask your lawyer how the agreement deals with spousal support, since that follows a different test.
• If you signed an agreement before 2020, ask a lawyer which rules apply to it.

Starting early leaves room for questions and changes without time pressure. If you already have a draft, a lawyer can check it against sections 37 and 38 before anyone signs.

Frequently asked questions