What Is a Prenuptial Agreement in Canada?
A prenup (short for prenuptial agreement) in Canada is a legal contract made between two people before they get married, outlining how property, assets, debts, and sometimes spousal support will be handled if the relationship ends. A prenup can be used to opt out of default family law rules that divide assets equally upon separation. A prenup gives couples more control and clarity over their financial future, helping to prevent misunderstandings and reduce conflict if the relationship breaks down.
Are prenups legal in Canada?
Yes, prenuptial agreements (often referred to as “prenups”) are legal in Canada. A prenup is a type of domestic contract that outlines how a couple will handle finances and property matters during their relationship and in the event of a separation or divorce. Each province has specific laws governing these agreements, but the general principles are fairly consistent across the country.
We think prenups are for everyone but they tend to be especially common among individuals with significant assets, people who own businesses, or those who have children from previous relationships. Even if you don’t fit into one of these categories, prenups can still provide you and your partner with clarity and peace of mind by defining financial responsibilities and expectations early in your relationship.
What is included in a prenup?
A prenuptial agreement in Canada can cover a wide range of topics, including:
- Division of property and assets
- Management of debts
- Spousal support obligations (alimony)
- Ownership of real estate, businesses, or investments
- Inheritance and gifts
- Responsibility for expenses during the marriage
One important thing that prenups cannot do is make arrangements for a couple’s shared children. Canadian law requires decisions about custody or child support to be determined based on what is in the child’s best interests, at the time of separation. This is why decisions about these topics can’t be made in advance. It is possible, however, to include some provisions in your prenup about children that you’re bringing into the marriage, and what each person’s expectation is about the parent-step-child relationship.
Do You Need a Lawyer for a Prenup in Canada?
Does a prenup have to be written by a lawyer?
No, a prenup does not legally have to be written by a lawyer. However, using a platform like Jointly, which was built by lawyers, or working with a lawyer in your province is highly recommended to ensure the agreement complies with provincial laws, is clearly worded, and will hold up in court. Poorly drafted agreements (like many you can find online for free) are more likely to be challenged or set aside, meaning they won’t protect you if your relationship ends.
Does a prenup have to be signed by a lawyer?
In most provinces, a lawyer’s signature is not required to have a legally binding prenup. To maximize the enforceability of a prenup, both people should receive independent legal advice before signing. This helps demonstrate that both people signed the agreement voluntarily and with a full understanding of what it meant. That being said, in most provinces this isn’t a requirement, it just adds an extra layer of protection.
If you create your prenup using Jointly, we’ll let you know exactly what is required in your province.
Do You Need Two Lawyers for a Prenup in Canada?
If you’re going to use the traditional legal services model, the answer is yes, ideally. Both people go to their own lawyers to get advice, and then the lawyers negotiate on each person’s behalf in order to reach an agreement. Having two separate lawyers helps to prevent any claims of coercion or conflict of interest.
If you’re using Jointly, we have built our platform for you and your partner to use together, you can learn what the law is through our course, and then build a legally valid agreement that fits your situation. You can still get independent legal advice on the agreement you’ve built which involves each person going to their own lawyer who will confirm that you understand the agreement. In most provinces, this is not necessary for an agreement to be valid.
Can one lawyer represent both people?
While it’s legally possible, it is not advisable. A lawyer cannot represent both people without a conflict of interest, because both people are likely to have interests that differ, if only a little. If only one lawyer is involved, the other person should at least obtain independent legal advice before signing.
Can I Do a Prenup Without a Lawyer?
Common mistakes in DIY prenups
Many people attempt to write their own prenup to save money, but common pitfalls include:
- Vague or overly broad terms
- Lack of full financial disclosure
- No clear provisions for spousal support
- Failing to comply with family law requirements
- Failing to update the agreement as circumstances change
DIY prenups often end up being unenforceable or challenged in court and divorce or separation proceedings typically cost significantly more than even the most expensive prenup. Why risk it?
What can make a prenup invalid in court?
A prenup may be set aside if:
- One or both people were not honest about their finances
- One person felt pressured or coerced by the other person into signing the agreement
- The terms are grossly unfair to one person
Using Jointly’s platform will help you to avoid these issues.
What Makes a Prenup Valid Under Canadian Law?
Basic legal requirements
To be valid, typically a prenuptial agreement must:
- Be in writing
- Be signed by both people voluntarily
- Include full financial disclosure
- Be signed in the presence of a witness
Disclosure, fairness, and consent
Courts will also look at whether the agreement was fair and whether both people understood what they were signing. If either person lacked information or was pressured, the agreement is unlikely to hold up. Also, if your prenup attempts to leave one person without any assets despite their contribution to the relationship (financial or otherwise), it is likely that a court will change your agreement or disregard it entirely.
When can a prenup be thrown out?
A prenup can be thrown out if it:
- Is significantly unfair
- Was not signed voluntarily
- Was based on false or incomplete information
- Was not updated to reflect major life changes
Who Should Get a Prenup in Canada?
Common Law Prenups
While the term “prenup” typically refers to married couples, common law partners can also enter into similar agreements. These are called cohabitation agreements, and they serve the same purpose: protecting assets and clarifying financial responsibilities.
Prenups and marriage
Any couple planning to marry should consider a prenup, especially if:
- One or both partners have substantial assets or debts
- There are children from previous relationships
- One partner owns a business or property
- There is a significant income disparity between partners
Do I need a prenup if I own property?
Yes. A prenup can clarify who owns what and how property will be handled during and after the relationship. This is especially important if one person owns a home and wants to protect it in case of separation.
Final Thoughts: Is a Prenup Right for You?
Where to get a prenup agreement in Canada
If you’re ready to create a prenup, there are several options:
- Downloadable PDFs available online for free or low cost (less customizable, may not be reliable)
- Start with Jointly, our online platform that offers affordable, legally binding prenuptial agreements at a fraction of the cost of traditional legal services (fits most relationships, check out our screening quiz here)
- Hire a family lawyer in your province (the best option if you have complicated assets, live or own property on reserve, or are in a polyamorous relationship)
Where to find a prenup lawyer in Canada
You can find a lawyer through:
- Your provincial law society’s referral service
- Local family law firms
- Online platforms that connect you with independent legal advice
Questions to ask before you sign a Prenup
- Have both people fully disclosed their finances?
- Does each person understand the terms?
- Was the agreement signed well before the wedding?
- Have both people had the opportunity to receive legal advice?
- Does the agreement reflect your current and future intentions?
A prenup isn’t just for the wealthy, it’s a smart way for everyone to plan for the future and build trust in your relationship. With platforms like Jointly, you can make your prenup online through our collaborative and affordable process. Get started here.
I founded Jointly because I want to empower more Canadians with the knowledge and tools to create relationship agreements that work for them, at a price they can afford. My big dream? That reaching more Canadians with Jointly ultimately keeps more families out of the court system when relationships breakdown, which can be slow, expensive and traumatic. (I may or may not have personal experience with this 😅)
When I'm not lawyering, I'm most likely hiking with my dogs, kayaking the coastal waters around North Vancouver, or hitting the sauna and cold plunge.
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