One of the most common questions couples ask when building a prenup is: “Can you waive spousal support in a prenup?”
The short answer: yes, you can include a waiver of spousal support in a prenuptial agreement (also called a marriage contract in Canada). But whether that waiver will hold up in court depends on fairness, disclosure, and sometimes on whether both partners had proper legal advice.
This guide breaks down what spousal support is, why couples address it in prenups, whether you can waive it, and the risks and benefits of doing so.
What Is a Prenup?
A prenuptial agreement (prenup) is a legally binding contract couples sign before marriage. In Canada, prenups are often called marriage contracts under provincial family law.
Prenups give couples the ability to plan ahead, instead of leaving everything to default family law rules if the marriage ends.
Purpose of a Prenup
The purpose of a prenup is to:
- Clarify how property and debts will be divided.
- Protect assets owned before the marriage.
- Reduce uncertainty and conflict during separation.
- Address financial responsibilities, including spousal support (alimony).
What Is Spousal Support?
Spousal support, often called alimony in the U.S., is money paid by one spouse to the other after separation or divorce.
Its purpose is to:
- Recognize economic sacrifices made during the relationship.
- Help the lower-earning spouse transition to independence.
- Prevent unfair financial hardship.
Support amounts in Canada are guided by the Spousal Support Advisory Guidelines, which consider factors like income differences, length of the relationship, and caregiving roles.
Why Couples Address Spousal Support in Prenups
Spousal support is one of the most common – and most contentious – issues in separations. By addressing it in a prenup, couples can:
- Create clarity and predictability.
- Avoid costly court disputes.
- Decide in advance whether support will be waived, limited, or set at a specific level.
- Reduce stress by knowing expectations upfront.
Can You Waive Spousal Support In a Prenup?
Yes. A prenup can include a spousal support waiver, where both partners agree not to claim support if they separate.
However, Canadian courts do not automatically enforce waivers. Judges always retain discretion to override clauses if enforcing them would be unfair or leave one spouse in financial hardship.
For example, if one partner left the workforce to support the other partner’s career or care for children, it’s unlikely that a judge would enforce an agreement that did not provide spousal support to the partner who made career and financial sacrifices for the family.
What Does It Mean to Waive Spousal Support?
To waive spousal support means agreeing that neither partner can seek financial support from the other if the relationship ends.
Common Reasons Couples Waive Spousal Support
- Both partners are financially independent.
- Each spouse wants a “clean break” in case of separation.
- One or both partners own significant assets and wish to protect them.
- Couples want to avoid future disputes about money.
Is It Legal to Waive Spousal Support in a Prenup?
In Canada, yes, it’s legal to include a waiver of spousal support in a prenup. But legality and enforceability aren’t the same thing.
Courts will ask:
- Was the agreement signed voluntarily, without pressure?
- Did both partners receive independent legal advice?
- Was there full financial disclosure?
- Is the waiver fair at the time of separation?
If the waiver is unconscionable (grossly unfair), a court can strike it down – meaning that part of your agreement will not be followed. You can protect against this outcome by making an agreement that values the financial and non-financial contributions of both parties, and reviewing and updating your agreement regularly as circumstances change.
Provincial Differences in Enforcing Spousal Support Waivers
Each province approaches prenups slightly differently:
- Ontario: Marriage contracts can include spousal support waivers, but courts can override if the result would be “unconscionable.”
- British Columbia: Agreements can address support, but a court may set aside clauses that are “significantly unfair.”
- Alberta: Prenups (marriage contracts) can waive spousal support, but strict disclosure and independent legal advice are required.
This means enforceability varies. A waiver may stand in some provinces but be challenged more easily in others. It’s important to know the specific rules in your province. You can sign up for our Agreement Starter Kit for free to get familiar with the law in your province.
Risks of Waiving Spousal Support
While waiving spousal support may seem appealing, it comes with risks:
- Uncertainty: Courts may not uphold the waiver if it is unfair when you separate.
- Changed circumstances: Illness, job loss, or having children can make a waiver unfair years later.
- Financial vulnerability: A lower-earning spouse could be left without reasonable support.
- Court intervention: Even with a waiver, a judge can order support.
How to Include a Spousal Support Waiver in Your Prenup
If you want to include a waiver, follow best practices to increase enforceability:
- Independent legal advice: Each partner must speak with their own lawyer.
- Full financial disclosure: Both partners must be transparent about income, assets, and debts.
- Fairness: Avoid extreme terms that leave one spouse destitute.
- Flexibility: Consider adding review clauses to ensure that your agreement reflects what is fair throughout your relationship.
FAQ
Are prenups enforceable in Canada?
Yes, prenups (marriage contracts) are enforceable if they meet legal requirements – full financial disclosure, fairness, and independent legal advice in some provinces. However, courts can override terms that are unfair.
Are there alternatives to fully waiving spousal support in a prenup?
Yes. Instead of a full waiver, couples may limit the amount, set a maximum duration, or agree to a lump sum payment.
Do both spouses need a lawyer to sign a prenup in Canada?
While technically not required in all provinces, having independent legal advice is very helpful for enforceability. Without it, courts are far more likely to strike down the agreement.
How to get out of paying spousal maintenance?
In Canada, you cannot always avoid spousal support. A prenup can help limit or waive support, but courts can override waivers. The best way to minimize risk is to create a fair, transparent agreement with proper legal advice.
Final Thoughts
So, can you waive spousal support in a prenup?
Yes, you can. But Canadian courts always look at fairness first. A prenup can help set expectations and limit disputes, but it cannot absolutely guarantee that spousal support will never be ordered.
At Jointly, we make it simple for couples to create clear, fair, and affordable agreements. With the right approach, you can address spousal support in your prenup in a way that gives both partners confidence.
👉 Ready to create your prenup? Visit getjointly.ca to get started.
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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