Are Prenuptial Agreements Enforceable In Nova Scotia?

As couples in Nova Scotia increasingly turn to prenuptial agreements to clarify financial expectations before marriage, one critical question arises: Are prenuptial agreements enforceable in Nova Scotia? The answer is yes – but only if certain legal requirements are met.

In this comprehensive guide, we’ll walk you through what a prenup is, how it works, and how to ensure that yours is enforceable under Nova Scotia family law.

What Is A Prenuptial Agreement In Nova Scotia?

A prenuptial agreement, commonly known as a prenup, is a written contract made between two people before they get married. In Nova Scotia, these agreements are legally referred to as “marriage contracts” under the Matrimonial Property Act.

Prenups allow couples to decide in advance how they’ll handle property division, debt, and spousal support during their relationship and in the event of separation, divorce, or death. They give partners greater control over their financial futures and provide clarity and peace of mind.

How Does A Prenuptial Agreement Work?

Wondering how a prenuptial agreement works? A prenup works by setting out the couple’s financial rights and obligations before marriage. It can:

• Protect assets acquired before the relationship
• Define how property will be divided if the relationship ends
• Outline whether spousal support will be paid
• Address the treatment of family businesses, pensions, or inheritances

Prenups cannot deal with parenting arrangements or child support, as these must be based on the child’s best interests at the time of separation.

The agreement must be in writing, signed, and witnessed – and it should meet specific legal standards to be enforceable in Nova Scotia.

Is A Prenuptial Agreement Legally Binding In Nova Scotia?

Yes, a prenuptial agreement is legally binding in Nova Scotia – as long as it meets certain criteria. Courts in NS generally respect and enforce agreements that are made fairly and in accordance with the Matrimonial Property Act.

However, not all prenups are automatically enforceable. A court can set aside an agreement if it finds issues such as unfairness, lack of disclosure, or coercion. That’s why it’s critical to draft the agreement carefully and with proper legal support.

How Nova Scotia’s Prenup Laws Differ from Other Provinces

While all provinces have laws that allow couples to enter into prenuptial agreements, Nova Scotia’s family law has some unique features:

• Automatic property sharing rules: In NS, each spouse is generally entitled to half of family property and is responsible for half of family debt, regardless of who paid for it. A prenup lets couples opt out of this default regime.
• Family Law Act: NS’s Matrimonial Property Act governs prenuptial agreements and gives courts discretion to set aside parts of an agreement if they’re found to be significantly unfair.
• Common-law inclusion: NS’s laws treat many common-law couples the same as married couples when it comes to property division, so prenups are relevant even if you don’t plan to legally marry.

Understanding these laws is essential when drafting a prenup that’s enforceable in Nova Scotia.

Legal Requirements For A Valid Prenup In Nova Scotia

To ensure your prenup is enforceable in NS, it must meet these key legal requirements:

Full Financial Disclosure

Both parties must fully disclose their financial situation, including income, debts, assets, and liabilities. Hiding or misrepresenting information can result in your prenup being declared invalid and unenforceable.

Voluntary Consent (No Duress or Coercion)

The agreement must be entered into freely and voluntarily. If one party was pressured into signing or didn’t have enough time to review the agreement, a court may find that they signed under duress. Presenting someone with a prenup days before the wedding is not a good plan.  Start the conversation early.

Fair and Reasonable Terms

Courts in Nova Scotia will assess whether a prenup is significantly unfair at the time it is being enforced. Unconscionable or one-sided terms could be struck down, especially if circumstances have changed significantly since the agreement was signed.

Proper Signing and Witnessing

The prenup must be:

• In writing (verbal agreements are hard to prove in court)
  
• Signed by both parties
  
• Witnessed properly (by a competent adult who is not a party to the agreement)

Independent Legal Advice

Each person should get independent legal advice before signing. This ensures that both parties understand their rights and the implications of the agreement. While not strictly required, it’s one of the strongest protections against future challenges. We’ve included a certificate of independent legal advice as part of every Jointly agreement that you can take to a lawyer in your area.

When Can A Prenup Be Challenged In Nova Scotia?

A prenup can be challenged and potentially set aside in NS if:

• There was a lack of financial disclosure
  
• One party didn’t receive legal advice
  
• The agreement was signed under pressure or threat
  
• The terms are significantly unfair
  
• Circumstances have changed, and the agreement now results in undue hardship

If any of these conditions apply, a court may declare the prenup invalid or modify its terms.

That’s why it’s crucial to ensure your agreement is well-drafted and revisited if your circumstances change – like having children, moving provinces, or changing careers.

Tips for Making a Prenup Enforceable in Nova Scotia

Here’s how to create a prenup that’s enforceable and stands the test of time:

• Start early: Avoid last-minute agreements that can be seen as coercive.
• Be transparent: Lay out all financial information openly. We have created a free financial disclosure worksheet to help you through this so you can get started today.
• Use clear language: Avoid legalese – clarity helps both partners understand the agreement and avoids confusion later.  We’ll take care of this for you if you use Jointly to make your agreement.
• Keep it fair: Avoid extreme or punitive clauses.
• Include a review clause: Agree to revisit the agreement periodically or when major life events occur. We’ve included a review form with every Jointly agreement.
• Get independent legal advice: While not strictly required in order for your agreement to be enforceable, it’s a good idea for each person to get independent legal advice if you can afford it.  We have included a certificate of independent legal advice with every Jointly agreement that you can take to a lawyer in your area.
  
  

At Jointly, we make it easy to create a clear, lawyer-developed prenup that meets NS’s legal standards – without the high cost or stress of traditional legal services.

Do You Need A Lawyer For A Prenup In NS?

Do you need a lawyer for a prenup? Technically, no—but in practice, yes, you really should.

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? 

Using a platform like Jointly allows you to access high-quality legal support at a fraction of the traditional cost, helping you build a legally sound agreement that reflects your circumstances and values.

Final Thoughts

So – are prenuptial agreements enforceable in Nova Scotia? The answer is yes, but only if they are created thoughtfully, transparently, and in compliance with NS’s family laws.

Prenups are not just for the wealthy. They’re for anyone who wants to clarify expectations, reduce the risk of conflict, and build a stronger foundation for the future. Whether you’re protecting a home, a business, or a shared financial vision, a prenup gives both partners a voice in what happens if things don’t go as planned.

Ready to create your prenup? Visit Jointly to get started with our affordable, modern agreement-building tools today.

FAQs

What is a prenuptial agreement in Nova Scotia?
A legally binding written contract signed before marriage that outlines how property, debts, and spousal support will be handled in case of separation or divorce.

Is a prenuptial agreement legally binding in NS?
Yes, if it meets legal requirements: full disclosure, fairness, consent, legal advice, and proper signing.

How does a prenuptial agreement work?
It lets couples define how assets and responsibilities will be managed during the relationship and if it ends.

Can a prenup be challenged in NS?
Yes, particularly if there was duress, unfair terms, or lack of financial disclosure or legal advice.

Do you need a lawyer for a prenup in NS?
Not legally required, but strongly recommended. Independent legal advice is crucial for enforceability.