Prenuptial agreements, also known as “prenups,” are the subject of many myths and misconceptions. Many people assume prenups are only for the rich or that they signify a lack of trust in the relationship. In reality, a prenup can be one of the most empowering and thoughtful steps a couple takes before marriage. So, how does a prenuptial agreement work in Canada? This guide breaks down everything you need to know to help you decide whether a prenup is right for you.
How Does A Prenup Work In Canada?
In Canada, a prenuptial agreement is a legal contract that couples enter into before getting married. It outlines how finances, property, and debts will be handled during the marriage and what will happen in the event of a separation, divorce, or death.
A prenup works by allowing both partners to agree in advance on the terms that will govern their financial relationship. This can prevent misunderstandings and legal disputes in the future. The agreement only comes into effect once the couple is legally married.
What Is A Prenup In Canada?
A prenuptial agreement is also known as a marriage contract or a domestic contract under provincial family law legislation. It is a private contract between two people planning to marry that defines how they will manage their property and responsibilities during and after the marriage.
A prenup can be tailored to suit each couple’s unique situation. Some couples use prenups to keep their finances entirely separate. This works well when a couple is coming into their relationship late in life and both people are already financially established. Others use them to clarify how they will share certain expenses or divide assets if they separate. This works well for couples who are building their careers and having children together.
What Does A Prenup Include?
A well-drafted prenup can include a wide range of financial terms. These may include:
- How property owned before the marriage will be treated
- How jointly acquired assets will be divided
- How debt will be handled
- Spousal support obligations
- Ownership and control of a business run by one partner
- How certain expenses will be shared during the marriage
What Does a Prenuptial Agreement Protect?
A prenuptial agreement can protect a wide variety of interests, including:
- Pre-marriage assets: Such as a home, savings, or business that one partner already owns.
- Inheritances or gifts: Received during the marriage and intended to remain separate.
- Business interests: To prevent the need for asset division or valuation disputes in a divorce.
- Family property: Including future inheritances or jointly owned vacation homes.
- Debts: By assigning debt responsibility to the person who incurred it.
One thing that cannot be included in a prenup is an agreement about whether and to what extent child support will be paid by one partner if your relationship ends. This is because courts and legislators have decided that the right to support belongs to the child, and cannot be contracted out of in a prenup. Although a prenup cannot override the legal obligation to support children, it can offer certainty in many other areas.
How to Create a Prenup In Canada
Creating a prenup involves a few important steps:
- Start the conversation early. Talk openly with your partner about financial expectations and goals.
- Make full financial disclosures. Each person should provide an honest overview of their income, assets, debts, and obligations. Don’t leave anything out.
- Use a clear written agreement. The prenup must be in writing and signed by both parties.
- Consider using an online platform. Tools like Jointly can guide you through the process at a lower cost than hiring two separate lawyers upfront.
- Get legal advice. Each partner should ideally get independent legal advice before signing. It’s not mandatory in all provinces, but it’s always a good idea if you can afford it.
- Sign voluntarily. The agreement must be signed without pressure, coercion, or duress.
Following these steps increases the likelihood that your agreement will be enforceable if it is ever challenged.
Are Prenups Legally Binding In Canada?
Yes, prenuptial agreements are legally binding in Canada, provided that they meet the required legal standards. These include:
- The agreement is in writing and signed by both parties
- There is full and frank financial disclosure
- Each person signs voluntarily
- Ideally, each person receives independent legal advice
Courts may set aside all or part of a prenup if it is significantly unfair, signed under pressure, or made without proper financial disclosure.
Who Should Get a Prenup?
While prenups are often associated with wealthy individuals, they can benefit almost anyone entering marriage. You should consider a prenup if:
- You own property or significant assets before marriage
- You have or expect to receive an inheritance
- You own or co-own a business
- One or both of you has significant debt
- You have children from a previous relationship
- You want to protect future income or assets
- You want to avoid default provincial property division laws
Even young couples with modest assets can benefit from the clarity and mutual understanding a prenup provides. One of the best benefits of a prenup is that it reduces the likelihood of having a costly, contested divorce down the road. Legal costs for a contested divorce can reach tens of thousands of dollars – meaning that a prenup can be even more important for couples who don’t have the ability to pay significant legal fees later.
Can You Change a Prenup After Marriage?
Yes, you can revise or update a prenup after marriage. This is typically done through a postnuptial agreement or amending agreement.
Common reasons to update a prenup include:
- A major change in financial circumstances
- The birth of a child
- A significant inheritance or windfall
- The sale or expansion of a business
Like the original prenup, changes must be in writing and signed by both parties, ideally with independent legal advice. Revisions should reflect your current needs and be made with the same care and transparency as the original agreement. You should see your prenup as a living document, meaning that you review and update it regularly as life changes.
Pros and Cons of a Prenup
Pros:
- Encourages open conversations about finances
- Protects pre-marital assets and family property
- Can limit or waive spousal support
- Reduces conflict and legal costs in the event of divorce
- Provides clarity and certainty
Cons:
- Can be uncomfortable to discuss for some couples
- May be perceived as unromantic or distrustful
- Can be challenged or set aside if not properly drafted
Overall, the benefits often outweigh the drawbacks, especially for couples who value communication and financial transparency, and want to protect themselves legally.
Conclusion – Should You Get a Prenup?
Whether or not to get a prenup is a deeply personal decision. For many couples, it offers a sense of security, clarity, and mutual understanding. A prenup is not a prediction of failure. Instead, it is a practical tool for managing risk and setting clear expectations.
If you are planning to get married and want to protect your interests, start the conversation early. With the right support and a thoughtful approach, creating a prenup can actually strengthen your relationship.
FAQs
Do you need a lawyer for a prenup?
In most provinces, you are not required to have a lawyer to make a prenup, but independent legal advice is strongly recommended. Courts are more likely to uphold a prenup if both parties had the opportunity to consult a lawyer. It also ensures that both people understand their rights and obligations.
How much does a prenup cost?
The cost of a prenup in Canada varies. Traditional legal services may range from $1,500 to $5,000 or more, especially if negotiations are involved. Jointly’s online platform offers a more affordable and streamlined process, starting at only $379.
Does a prenup expire?
Most prenuptial agreements do not expire unless they include a “sunset clause.” A sunset clause is a term that causes the agreement to end after a specific number of years or upon a triggering event. Without such a clause, the agreement remains in effect indefinitely. That being said, you should update your agreement regularly as life changes.
Does a prenup protect future assets?
Yes, a prenup can be drafted to protect future assets such as a business you plan to start or an expected inheritance. The key is to be specific and transparent about your intentions.
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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