New research from TD Bank and others shows that more Canadians are choosing to enter into a prenuptial agreement (or “prenup”) as part of their relationship planning. But a question that often arises is: Are prenuptial agreements enforceable in Canada? The short answer is yes, but only if certain legal requirements are met. In this post, we’ll break down how prenuptial agreement laws work, what makes a prenup legally binding, and how to ensure your agreement is enforceable.
What Are Prenuptial Agreement Laws?
Prenuptial agreement laws in Canada are governed by provincial and territorial family law legislation. In Ontario, for example, prenups are called “marriage contracts” under the Family Law Act. These laws outline how and when couples can contract out of default rules related to property division, spousal support, and more.
While each province has its own legal framework, the core principles for making a prenup enforceable, such as full financial disclosure, fairness, lack of pressure or duress, are consistent across Canada.
What Is A Prenuptial Agreement In Canada?
A prenuptial agreement is a written contract signed before marriage that outlines how a couple will deal with property, finances, and support during the relationship and if they separate, divorce, or one partner dies. It allows couples to take control of their financial futures rather than relying on provincial family laws to decide what happens if things go wrong.
How does a prenuptial agreement work? It works by proactively setting out rights and responsibilities, such as:
- What happens to assets and debts acquired before or during the marriage
- Whether spousal support will be paid (or waived)
- How the matrimonial home will be treated
- Any special arrangements for businesses, inheritances, or pensions
A prenup cannot deal with parenting time or child support, which must always reflect the best interests of the child at the time of separation.
Is A Prenuptial Agreement Legally Binding In Canada?
Yes, prenuptial agreements are legally binding in Canada, as long as certain requirements are met. Courts will generally enforce an agreement unless there are serious issues with how it was made or with its contents.
That said, prenups are not bulletproof. If a judge finds that the agreement was signed under pressure, without proper disclosure, or contains unfair provisions, it may be set aside or revised.
Legal Requirements For A Valid Prenup In Canada
So what makes a valid prenuptial agreement? The enforceability of a prenup depends on meeting these legal requirements:
Full Financial Disclosure
Each partner must provide complete, honest, and detailed disclosure of their financial situation. This includes income, debts, assets, pensions, business interests, and more. If one person hides key information, the agreement can be invalidated.
Voluntary Consent (No Duress or Coercion)
A prenup must be entered into voluntarily. If someone is pressured into signing, or feels they have no real choice, say, they’re presented with a prenup days before the wedding, that can make the prenup invalid. Signing early and without threats or ultimatums is key.
Fair and Reasonable Terms
A prenup should be relatively fair. If the agreement is heavily one-sided or would leave someone destitute after a long marriage, a court might not enforce it. Fairness doesn’t mean everything must be split equally, but it must be within reason.
Proper Signing and Witnessing
The agreement must be in writing and signed by both parties. Verbal agreements don’t count. It’s best to store the agreement somewhere secure and share a copy with your lawyer and partner.
Independent Legal Advice
If you can afford it, it’s a good idea to get independent legal advice from separate lawyers. This will ensure that both partners fully understand their rights, risks, and the impact of signing the agreement. While not strictly mandatory in all provinces, lack of legal advice is one of the top reasons a prenup is successfully challenged in court. We include a certificate of independent legal advice with every Jointly agreement that you can take to a lawyer in your area.
When Can A Prenup Be Challenged In Canada?
Even with the best intentions, prenups can be challenged. Here’s when a court might intervene:
- One party didn’t disclose their finances accurately or fully.
- One party didn’t get legal advice, especially if the agreement significantly limited their rights.
- The agreement was signed under duress, such as too close to the wedding date.
- The terms are grossly unfair or contrary to public policy.
- Circumstances have changed dramatically, and the agreement now causes undue hardship.
If a court finds any of these issues, the prenup may be set aside in part or in full.
Tips To Ensure Your Prenuptial Agreement Is Enforceable
To protect the enforceability of your agreement, follow these tips:
- Start early: Begin the prenup conversation well before the wedding.
- Be transparent: Disclose all finances fully and honestly.
- Use clear, plain language: Avoid legal jargon when possible. If you make your agreement with Jointly, we can help you with this part.
- Consider future changes: Include a clause that allows periodic review or updates.
- Seek independent legal advice: This protects both partners and adds credibility.
Using a service like Jointly can make it easier to build a prenup that reflects your values, avoids common pitfalls, and meets legal standards.
Do You Need A Lawyer For A Prenuptial Agreement In Canada?
Do you need a lawyer for a prenuptial agreement? Technically, no, but practically, yes.
While it’s possible to create a prenup without a lawyer, as you’ve learned above, there are a number of complexities involved in creating a legally enforceable prenup. The cost of a contested divorce can be in the tens of thousands of dollars. Why risk it?
Jointly offers an affordable, lawyer-designed prenup builder that includes legal guidance at a fraction of traditional costs.
Final Thoughts
So, are prenuptial agreements enforceable in Canada? Yes, if they’re done properly. The courts generally respect people’s right to contract about their financial futures. But if your agreement fails to meet the legal requirements or seems unjust, it could be challenged and overturned.
That’s why it’s so important to do it right the first time. Whether you’re protecting a business, safeguarding future inheritance, or simply planning ahead, a prenup is a powerful tool to clarify expectations and reduce conflict later.
At Jointly, we make it simple to create a valid, enforceable, and affordable prenuptial agreement that gives you both peace of mind.
FAQs
How does a prenuptial agreement work?
It lets couples decide in advance how to handle property, debt, and support if they break up, rather than relying on provincial laws.
Is a prenuptial agreement legally binding in Canada?
Yes, if it meets the legal requirements: full financial disclosure, no coercion, independent legal advice, and fairness.
Can a prenup be challenged?
Yes, especially if one party didn’t have legal advice, the terms are grossly unfair, or financial information was withheld.
What can make a prenup invalid?
Missing disclosure, coercion, or unfair terms can make a prenup invalid in Canada.
Do you need a lawyer for a prenuptial agreement?
It’s strongly recommended. While not always legally required, seeing a lawyer or using a platform like Jointly greatly increases enforceability.
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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