One of the most common questions couples ask when exploring prenuptial agreements is: “Can a prenup protect against alimony?”
In Canada, alimony is called spousal support. A prenup can include clauses about spousal support, but whether they will be enforced depends on several factors, including fairness, full disclosure, and independent legal advice.
This guide will walk you through what alimony is, how prenups work in Canada, how the two interact, and whether you can use a prenup to avoid paying alimony.
What is Alimony?
Alimony (spousal support in Canada) is money one spouse may have to pay the other after separation or divorce.
Spousal support exists because relationships often create financial interdependence. One partner may stay home with children, reduce work hours, or support the other’s career. When the relationship ends, the law tries to prevent unfair financial hardship. This might require one spouse to make payments to the other after the relationship ends to help them retrain to enter the work force or get back on their feet.
Types of Alimony
Different types of alimony (spousal support) may apply depending on the circumstances:
Temporary alimony
Support paid while the separation or divorce is still in progress. This ensures both partners can meet living expenses during the transition.
Rehabilitative alimony
Short-term support to help a spouse become financially independent – for example, while retraining or going back to school.
Permanent alimony
Rare today, this applies in long-term marriages where one spouse cannot reasonably return to the workforce due to age, health, or caregiving responsibilities.
Lump sum alimony
Instead of ongoing payments, one spouse pays a one-time or fixed total amount. This can make separation cleaner but isn’t always appropriate.
What is a Prenup?
A prenuptial agreement (prenup), often called a marriage contract in many Canadian provinces, is a legally binding contract couples sign before marriage. It sets out how property, debts, and other financial matters will be handled if the marriage ends.
What Is the Purpose of a Prenup?
The purpose of a prenup is to:
- Protect assets owned before marriage.
- Clarify how debts and property will be shared.
- Reduce conflict and uncertainty if the relationship ends.
- Give couples control over financial decisions rather than leaving everything to default provincial laws.
How Does a Prenup Protect You?
A prenup can protect you by:
- Defining ownership of assets like homes, investments, or businesses.
- Reducing lengthy and costly disputes if the marriage ends.
- Creating financial transparency before marriage.
- Setting expectations about spousal support (alimony), though enforceability depends on fairness, as discussed further below.
Does a Prenup Protect Against Alimony?
This is where things get tricky.
Yes, a prenup can include terms to waive or limit alimony. But in Canada, if a prenup is challenged, courts will review these terms and may override them if they are unfair at the time of separation.
So while a prenup can help protect against alimony, it cannot guarantee you will never have to pay spousal support. Whether or not spousal support should be paid is based on the legal framework and the circumstances of your relationship.
Alimony in a Prenup
Including provisions about alimony in a prenup can provide clarity for both partners.
How Alimony Can Be Addressed in a Prenup
Common approaches include:
- Agreeing to waive spousal support.
- Setting limits on the amount or duration of support.
- Establishing a lump sum payment instead of ongoing payments.
Prenup Alimony Waiver
A prenup alimony waiver means both partners agree not to claim spousal support if the marriage ends. In Canada, courts may uphold this if it’s fair, but can set it aside if it creates undue hardship.
How to Include Alimony in a Prenup
To make alimony clauses more enforceable:
- Both partners should get independent legal advice.
- Financial disclosure should be full and honest.
- The clause should be reasonable and not leave one partner destitute.
- Update your prenup if circumstances change (for example, children or health issues).
Alimony Laws in Canada
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.
Pros and Cons of Including Alimony in a Prenup
Pros:
- Reduces uncertainty.
- Encourages open conversations about finances.
- May help avoid costly litigation.
- Allows couples to customize their own terms rather than relying on default laws.
Cons:
- May not be enforceable if unfair at separation.
- Can create difficult conversations before marriage.
Best Practices for Enforceable Alimony Clauses in Prenups
To maximize enforceability in Canada:
- Ensure independent legal advice for both partners.
- Provide full financial disclosure.
- Keep terms reasonable – avoid leaving one partner unable to support themselves.
- Update your agreement as your circumstances change.
FAQ
Can I change a prenup after marriage?
Yes. You can update or replace a prenup with a postnuptial agreement (postnup). In Canada, these are called marriage contracts if you’re married or cohabitation agreements if you’re living common-law. It’s a good idea to review your agreement regularly, and update it whenever you have a significant change in circumstances.
Can a prenup prevent paying alimony entirely?
A prenup can include a waiver of alimony (spousal support), but Canadian courts may override it if enforcing the waiver would be unfair. So, while a prenup can help limit alimony, it cannot guarantee complete avoidance unless that is fair and reasonable in the context of your relationship.
Final Thoughts
So – does a prenup protect against alimony?
Yes, but only to an extent. A prenup can include terms about alimony, such as waiving or limiting it, but Canadian courts will always look at fairness at the time of separation.
At Jointly, we help couples create clear, fair, and legally informed agreements. While you can’t always guarantee protection against alimony, you can set expectations, reduce uncertainty, and strengthen your relationship with honest conversations.
👉 Ready to start building your prenup? Visit getjointly.ca today.
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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