Prenuptial agreements, or prenups, are a popular legal tool used by couples to clarify how property, assets, and debts will be managed during their relationship and in the event of separation, divorce, or death. But while they can provide peace of mind, they aren’t immune from legal scrutiny. Many people ask, can you challenge a prenup? or can a prenup be overturned in court? The short answer is yes, but only under certain conditions.
This guide explores everything you need to know about challenging a prenuptial agreement in Canada, including what makes a prenup invalid and what courts look for to assess whether a prenup is enforceable.
One of the most common questions that we get at Jointly is: are prenups legally binding in Canada? The answer is generally yes, if they meet certain legal requirements.
In Canada, prenuptial agreements are governed by provincial and territorial family laws. Although each jurisdiction has its own legislation, prenups are generally legally binding across the country, provided they are:
However, just because prenups are legally recognized does not mean they are automatically enforceable. Courts can and do strike them down under certain conditions.
Yes. Challenging a prenuptial agreement is possible in Canada, and courts will carefully review the facts to determine whether to uphold or invalidate the agreement.
Common prenup scenarios that lead to legal challenges are:
If you’re considering contesting a prenuptial agreement, keep reading to determine what you’ll need to prove in order for your challenge to succeed.
When contesting a prenuptial agreement, certain red flags are more likely to lead a court to declare a prenup invalid. These include:
So, what makes a prenup invalid in the eyes of the court? Let’s break it down.
The agreement must be in writing and signed by both parties. Failing to meet these requirements could render the prenup unenforceable.
If either party fails to disclose significant assets, liabilities, or income sources, the agreement can be set aside.
Courts will not enforce agreements that are grossly unfair, such as denying a spouse any support regardless of the marriage’s duration or sacrifices made (like one person giving up their career to care for children).
While not legally required, having a lawyer or using a lawyer-developed platform like Jointly greatly reduces the risk of a prenup being challenged. Contract drafting is technical. If you wrote your own prenup and didn’t adhere to family legislation or legal standards of contract drafting, your prenup could be found to be invalid.
If the agreement is signed too close to the wedding date, courts may infer duress or lack of time for proper review.
When reviewing whether a prenup can be enforced, courts look at both the form (how it’s written) and the substance (what it says) of the agreement. The judge will consider:
If the court finds the prenup invalid or unenforceable, it will not be used to decide property division or spousal support. Instead, the court will apply provincial family law, which often involves equal division of assets and determination of support based on need and contribution. Provincial legislation is intended to provide an outcome that is reasonably fair, but it may not align with what you and your partner would have decided for yourselves in a prenup.
Trying to overturn a prenup is an uphill battle, but here are the steps typically involved:
Courts will require compelling evidence to set aside an agreement. Remember, the burden is on the person contesting the prenuptial agreement to prove its invalidity. That means that you need to gather everything you can to show the court that what you’re saying is true. If you know your partner hid assets from you, can you prove it? If you were pressured into signing the agreement on the day of your wedding, do you have text messages or emails backing that up? The rules of evidence in court are complicated. If you have the means to hire a family lawyer in your area to assist you with challenging your prenup, you should do so.
If you want your prenup to hold up in court, follow these best practices:
When done correctly, a prenup can be a powerful and enforceable document that protects both partners.
While prenups are legally binding in Canada, they aren’t immune from challenge. Whether you’re asking, can you challenge a prenup, can a prenup be overturned, or what makes a prenup invalid, the key takeaway is this: prenups must be created with care, fairness, and transparency.
If you’re concerned about the validity of your existing prenup or want to draft a new one that will hold up in court, get started with Jointly. Our platform is accessible, affordable, and provides legally-informed guidance to help you create strong, clear agreements from the start.
Amanda BaronI'm Amanda, one of the founders of Jointly. I've been working as a lawyer in British Columbia for over ten years. I have a deep commitment to access to justice and building stronger, more resilient communities. I’ve always believed that everyone deserves affordable, clear, and accessible legal solutions to navigate life’s big moments.