When couples plan a life together, they often talk about weddings, homes, and future dreams. Legal planning rarely tops the list, but a prenuptial agreement can be just as important as any other part of building a strong foundation as a couple.
So what are the pros and cons of prenuptial agreements in Canada? In this post, we will walk through what a prenup is, what it does, and how it can help Canadian couples in different ways, depending on their goals and circumstances.
What Is A Prenuptial Agreement In Canada?
A prenuptial agreement, often called a prenup, is a written contract between two people who intend to get married. In Canada, the terms marriage contract and domestic contract are also used under provincial family law.
A prenup allows couples to decide in advance how they will handle their finances, property, debts, and support obligations during the marriage and in case of separation or divorce. It gives couples a chance to opt out of the default rules that would otherwise apply under provincial law.
What Does A Prenup Do?
A prenup sets clear financial expectations and responsibilities. It can:
- Define what property will remain separate and what will be shared
- Set out who is responsible for existing debts
- Outline how assets will be divided if the marriage ends
- Include or waive spousal support
- Protect business interests or inheritance plans
- Reduce uncertainty and the need for costly legal disputes
If you don’t have a prenup, you’re leaving it up to provincial legislators to decide what happens to your property if your relationship ends. In short, prenups help couples make informed choices and avoid the default legal framework made by their provincial government that might not reflect their needs and circumstances.
Pros Of A Prenup
Prenups are not just for celebrities or the ultra-wealthy. They offer practical benefits to couples of all backgrounds. Here are the key pros of a prenup.
Protects Individual Assets
One of the most common reasons for a prenup is to protect property that one person brings into the marriage. This might include a home, investments, or family heirlooms. A prenup can clearly state that these assets remain separate, regardless of what happens in the relationship.
Clarifies Debt Responsibility
Debt can be a major issue in relationships. A prenup can assign responsibility for individual or joint debts, ensuring one person is not stuck paying for the other’s obligations in case of separation.
Avoids Lengthy Divorce Battles
Without a prenup, separating couples must follow the default rules under provincial family law. These rules are not always straightforward and often lead to disagreements and court proceedings. A prenup can help avoid long, expensive legal disputes by setting expectations in advance. Legal costs for contested divorces can run into the 10s of thousands of dollars. A small investment in a prenup now can pay off in spades down the road.
Protects Business Interests
If you own or co-own a business, a prenup can protect it from being divided or impacted by a divorce. This can be crucial for maintaining operations, safeguarding co-owners, and preventing forced sales or buyouts. It can also provide confidence to your business partners and investors that your business will not be disrupted by a change in your relationship status.
Supports Estate Planning Goals
Prenups can work hand in hand with estate plans. For example, you might want to ensure that certain property goes to your children or family members rather than your spouse if you pass away. A prenup can reinforce your wishes and reduce the chance of legal challenges.
Can Protect Children from Previous Relationships
If you have children from a prior relationship, a prenup can help ensure their inheritance or financial interests are protected. This is especially important in blended families where intentions need to be clearly documented. Getting on the same page as your partner about what is best for them and for your children can also reduce friction and interpersonal conflict in blended families.
Encourages Honest Financial Discussions
Talking about a prenup means talking about finances, values, and expectations. These are conversations that every couple should have. Creating a prenup encourages transparency and collaboration, which can strengthen the relationship in the long run.
Cons Of A Prenup
Like any legal document, a prenup has limitations and potential drawbacks. Here are the main cons of a prenup to consider.
May Create Distrust or Tension
Some people feel that bringing up a prenup suggests a lack of trust or belief in the relationship. It can be an emotional topic and may lead to difficult conversations if one partner is more enthusiastic about the idea than the other. This can be avoided by approaching the conversation with openness and care. A couples counsellor can help if it’s something you need some assistance navigating.
Can Be Challenged in Court
Even if a prenup is legally valid, it can still be challenged. If a court finds that one person was pressured to sign, did not have full financial disclosure, or did not receive legal advice, the agreement (or parts of it) might be set aside. This risk can be decreased by using Jointly’s platform to make an agreement, or by visiting a lawyer in your area.
May Not Cover Every Future Scenario
No one can predict the future. While prenups can cover many financial topics, they may not anticipate all life changes such as illness, job loss, or relocation. Agreements should be reviewed periodically to ensure they stay relevant and continue to fit your circumstances as a couple.
Legal Costs and Complexity
Creating a strong prenup requires time, thoughtful conversations, and usually legal advice for both partners. This can come with upfront costs, especially if lawyers are involved from the start. However, these costs are often far lower than litigation costs during a divorce. Using Jointly’s online platform significantly reduces legal costs.
May Be Unenforceable If Poorly Drafted
A prenup must follow certain legal standards to be enforceable in Canada. If it is missing key elements like financial disclosure or independent legal advice, it may be challenged and overturned. Poorly drafted prenups can give a false sense of security. Using Jointly’s lawyer-designed platform can also help you manage this risk.
Are Prenuptial Agreements Legally Binding In Canada?
Yes, prenuptial agreements are legally binding in Canada, as long as they meet specific requirements:
- The agreement must be in writing and signed by both parties
- Each person must provide full financial disclosure
- The agreement must be signed voluntarily, without pressure or coercion
- Independent legal advice is required in some provinces, and strongly recommended in others
Courts have the power to set aside a prenup if it is found to be significantly unfair or was not created properly. Taking care to meet all legal requirements improves your chances of the agreement being upheld.
Who Should Get A Prenup?
Prenups are a good idea for all couples, especially those who:
- Own property, savings, or investments before marriage
- Have children from previous relationships
- Expect to receive an inheritance
- Own or operate a business
- Have significant personal or student debt
- Want to maintain financial independence
- Simply want clarity and peace of mind
You do not need to be wealthy to benefit from a prenup. What matters is that you want to make clear, informed decisions about your future.
How to Create a Prenup In Canada
Creating a prenup in Canada involves a few key steps:
- Have the conversation early. Give yourselves time to talk things through. Ideally, this conversation should start months (not weeks) before your wedding.
- Make full financial disclosures. Each partner should share details about their assets, income, and debts. If you hide something from your partner at this stage, the prenup is unlikely to hold up if it is later challenged.
- Use a reliable template or platform. Jointly offers a guided, affordable way to create a legally-informed prenup for only $379.
- Get legal advice. While not legally required in all provinces, independent legal advice is highly recommended.
- Sign the agreement. Both partners must sign the prenup voluntarily and in writing before the wedding.
You can create your prenup entirely online with Jointly or work with a lawyer. What matters most is that the agreement reflects both partners’ values and is legally sound.
Conclusion: Is a Prenup Right for You?
A prenup is not a prediction of failure. It is a thoughtful way to protect what matters most and to plan for the future with transparency and respect.
If you are getting married and want to have clarity around finances, property, or support, a prenup is a great choice. It allows you to make your own rules, rather than relying on default laws that may not suit your needs.
At Jointly, we make it easy for couples across Canada to create strong, personalized prenuptial agreements online. You do not need to be a lawyer or spend thousands of dollars to make smart legal choices.
FAQs
Can a prenup be changed after marriage?
Yes. A prenup can be updated or replaced after marriage through a postnuptial agreement. If your financial situation changes or you want to revise the terms, you can create a new written agreement that reflects your current goals. You should review your prenup regularly, and update it to fit your family as it evolves.
Are prenups enforceable in every province?
Prenups are enforceable across Canada, but each province has its own family law rules. The requirements for a valid prenup are broadly consistent, but local legal advice can help you ensure compliance with your province’s laws. Jointly’s materials are drafted in accordance with the law in your province.
Can you include custody or child support terms in a prenup?
No. Custody, access, and child support decisions must be based on the best interests of the child at the time of separation. These issues cannot be predetermined in a prenuptial agreement.
What happens if you don’t have a prenup?
Without a prenup, provincial family law will determine how your property is divided and whether spousal support is owed. This can lead to outcomes that you did not expect or want. A prenup gives you the ability to make choices that fit your circumstances.
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