When couples think about prenups, one of the first questions that comes up is: can a prenup prevent alimony? The answer is: sometimes, but not always.
Prenuptial agreements (prenups) can set expectations around property division, debt, and sometimes spousal support (alimony). But whether a prenup can waive or limit spousal support depends on where you live and how the agreement is drafted.
In this guide, we’ll cover everything you need to know about alimony in a prenup – from what alimony actually is, to how courts handle alimony clauses, to the pros and cons of including alimony provisions in your own agreement.
What Is Alimony?
Alimony, also known as spousal support in Canada, is money one spouse pays to the other after separation or divorce.
While every couple’s situation is different, the idea behind alimony is that when a relationship ends, one partner shouldn’t be left financially stranded – especially if they made sacrifices for the family, such as staying home to raise kids or supporting the other partner’s career at the expense of their own.
What Is the Purpose of Alimony?
The purpose of alimony is to balance fairness after a breakup. Courts recognize that marriage or long-term relationships often create financial interdependence. If one spouse earns much more than the other – or if one left the workforce to care for children – the law tries to reduce hardship through financial support.
In short: alimony exists to help one partner transition to financial independence, maintain stability, and avoid inequity after a relationship ends.
Types of Alimony
Different types of alimony exist depending on the circumstances:
Temporary alimony
Awarded while a divorce or separation is pending. It ensures both partners can cover living expenses until the case is resolved.
Rehabilitative alimony
Support for a limited period while the receiving spouse becomes financially independent – for example, finishing school or retraining for a job after a career break.
Permanent alimony
Less common today, permanent alimony may be awarded after long marriages where one spouse cannot reasonably re-enter the workforce due to age, health, or caregiving responsibilities.
Lump sum alimony
Instead of ongoing payments, one spouse pays a fixed amount – either upfront or in installments – to meet support obligations.
What Is a Prenup?
A prenuptial agreement (prenup) is a contract couples sign before marriage. It outlines how property, debts, and finances will be handled if the marriage ends.
Prenups don’t mean you expect to divorce – they’re about planning ahead, just like insurance or estate planning. We hope you’ll never need to use your prenup, but you’ll be glad it’s there if your relationship ends. Prenups serve to streamline the separation process and make it easier for couples to divide assets and move on amicably, without needing to go through contentious divorce proceedings in court.
How Does a Prenup Protect You?
Prenups can:
- Protect property you owned before marriage;
- Clarify how debts will be shared;
- Outline how property acquired during marriage will be divided; and
- Address spousal support, among other things.
Alimony and Prenup
So how do alimony and prenups connect?
Including alimony in a prenup can give couples clarity and reduce conflict. You might agree in advance on whether alimony will be waived, limited, or set at a specific amount.
It’s important to note that what you set out in your prenup in terms of alimony must be fair and reasonable based on the circumstances of your relationship. If one spouse makes the money and the other stays home to care for the children, it’s very unlikely that a prenup that does not provide support for the stay-at-home spouse will be upheld by a judge if it’s challenged in the future.
Alimony in Prenup
Common Clauses and Conditions
Typical alimony clauses in prenups include:
- Waiving alimony entirely.
- Setting a maximum or minimum payment.
- Limiting alimony based on length of marriage.
- Specifying a lump sum instead of ongoing payments.
Prenup Alimony Waiver
A prenup alimony waiver is when both partners agree that no alimony will be paid if they separate. Whether this is enforceable depends significantly on the circumstances of your relationship. If you’re entering your marriage later in life, and both spouses are financially independent and expect to continue to be, this makes sense. If you’re entering your marriage young and expect one spouse will take time away from the work force to care for children, excluding spousal support from your agreement will not be seen as fair and reasonable by a judge unless there are other factors at play (for example, a transfer of property or a lump sum of money instead).
Alimony Payments and Considerations
Couples may agree on:
- The amount of alimony payments.
- How long payments will last.
- Conditions that end support (e.g., remarriage or cohabitation with a new partner).
Limits and Enforceability
Even with a prenup, a court may override alimony clauses if they’re unfair, signed under pressure, or leave one spouse without reasonable support. When you’re making your agreement, it’s important to make sure that it’s fair to both parties, and acknowledges both financial and non-financial contributions to the relationship.
Legal Considerations for Alimony in a Prenup
Laws around alimony and prenups vary widely.
Alimony Laws by Province
Canadian law is guided by both federal and provincial rules.
- Federal Divorce Act: Applies to legally married couples who divorce. It allows spousal support orders based on need, compensation, and fairness.
- Provincial laws: Apply to unmarried couples (common-law) and sometimes to married couples who separate but don’t divorce. For example:
- British Columbia: The Family Law Act allows prenups (marriage agreements) to set spousal support terms, but courts can override them if “significantly unfair.”
- Alberta: Prenups (called marriage contracts) can address spousal support, but must meet strict fairness and disclosure standards.
- Ontario: Marriage contracts can cover spousal support, but a court may override if the terms are “unconscionable.”
- British Columbia: The Family Law Act allows prenups (marriage agreements) to set spousal support terms, but courts can override them if “significantly unfair.”
Bottom line: Canadian courts prioritize fairness over strict contract enforcement.
Enforceability Factors
Courts consider:
- Was the prenup signed voluntarily?
- Did both parties have independent legal advice?
- Was financial disclosure complete?
- Is the alimony clause fair at the time of enforcement?
When a Court Can Override
Even if your prenup says no alimony, a court may award it if:
- One spouse would face serious financial hardship.
- Circumstances have changed drastically since the prenup was signed.
It’s important to review and update your prenup as your circumstances change. For most of us, life doesn’t go exactly as planned. What is fair and reasonable when you get married may not be as fair 20 years down the road.
How to Draft Alimony Clauses in a Prenup
If you want to address alimony in your prenup, keep these best practices in mind:
- Be clear and specific.
- Review enforceability in your province.
- Both partners should have independent legal advice.
- Build in fairness – courts are more likely to uphold reasonable clauses.
Pros and Cons of Including Alimony in a Prenup
Pros:
- Reduces uncertainty.
- Prevents lengthy legal disputes.
- Allows couples to customize support terms.
Cons:
- May not be enforceable if unfair.
- Could create tension in prenup negotiations.
- Courts can still override clauses.
FAQ
Can a Prenup Prevent Alimony?
Yes, a prenup can attempt to prevent alimony through a waiver clause. But whether it works depends on where you live and whether the clause is fair.
Can You Get Alimony If You Signed a Prenup?
Yes. Even if you signed a prenup saying no alimony, a court may still award it if enforcing the waiver would cause hardship or be unfair.
Final Thoughts
Alimony in a prenup is one of the most complex and important issues to think about when creating an agreement. While couples can agree to waive or limit alimony, courts always have the final say.
That’s why it’s essential to approach prenups thoughtfully, with fairness in mind. At Jointly, we make it easier to understand your options, learn about the law, and build agreements that protect both partners.
👉 Ready to explore your own prenup? Visit getjointly.ca to get started.
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